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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A.     TREATISE 


ow 


THE  LAW 


OF 


Suretyship  and  Guaranty. 


By 
DARIUS  II.  PINGREY,  LL.  D., 

Authob  or  Treatises  on  Chattel  Mortgages,  Heal  Estate  "Mobtgages 
and  Real  Pbopebty. 


ALBANY,  N.  Y. : 

MATTHEW  BENDER. 

1901. 


Copyright,  1900, 
By  DARIUS  H.  PINGREY, 


)90( 


W  LLI  \ M   EOVD 

PRINTER,    ELECTROTYPER,    ETC. 

ALBANY,    i«  .Y. 


preface: 


It  has  been  the  endeavor  in  writing  this  work  to  present  a 
systematic  and  concise  treatise  on  the  subject  of  Suretyship 
and  Guaranty.  To  do  this  the  early  and  leading  cases  have 
been  used  to  show  the  elementary  and  indisputable  principles  of 
the  subject.  The  other  cases,  including  the  very  latest,  have 
been  cited  to  show  the  application  of  these  principles  in  the 
interpretation  of  the  law  of  to-day,  which  is  the  most  useful 
because  the  most  needed. 

It  has  been  the  aim  to  state  the  principles  of  law  as  settled 
by  the  weight  of  authority,  in  a  clear  and  succinct  manner,  with- 
out entering  upon  a  protracted  philosophical  discussion,  or  mar- 
shaling in  the  text  an  array  of  conflicting  decisions,  except  as  to 
the  established  law  of  the  different  States. 

A  more  elaborate  work  could  have  been  constructed  with  less 
time  and  labor.  Definitions  have  been  formulated  and  princi- 
ples stated,  it  is  hoped,  with  perspicuity  and  accuracy.  Many 
cases  have  been  cited  which  may  be  used  as  a  basis  of  an  ex- 
haustive examination  of  the  subject  when  a  brief  is  desired. 

The  student  will  find  that  this  treatise  will  serve  him  in  the 
law  school  and  then  in  his  practice ;  having  studied  the  work,  he 
will  know  where  to  find  the  law,  a  knowledge  which  distinguishes 
every  great  lawyer. 

In  conclusion  it  is  proper  to  say  that  this  work  has  been 
prepared  by  the  author's  personal  labor. 

Daeius  H.  Pingkey. 
Bloomington,  111.,  Jam  21,  1901. 


667&C9 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

nature  and  effect. 

Sec. 

Principal    1 

Surety  2 

Co-surety     3 

Distinction   between    Suretyship    and    Guaranty 4 

How  Created    5 

Nature  of  Surety's  Liability  6 

Ignorance  of  Co-surety's   Obligation 7 

Substitution  of  Sureties  8 

Successive  Bonds    9 

Agreement  as  to  Liability  Among   Sureties 10 

Grantee  of  Mortgaged  Premises 11 

Rights  of  Mortgagee — In  Equity  or  in  Law 12 

The   Mortgagee   Must   Assent 13 

Accommodation   Indorser    14 

The  Acceptor  of  a  Draft 15 

Indorser  of  Notes 16 

Notes  Payable  to  Maker  17 

Pledging  or  Mortgaging  Property  to  Secure  the  Debt  of  Another  Person  18 

Mortgaging  of  Wife's   Separate   Property 19 

Dissolution  of  Partnership — One  or  more  Partners  Assuming  Partner- 
ship Debts    20 

Partners  or  Principals  Agreeing  Among  Themselves — Effect  on  Cred- 
itor's Rights    21 

Joint   Contract    22 

Joint   Executors   and   Administrators 23 


CHAPTER  II. 


THE    PARTIES. 


Infants     24 

Insane  Persons    25 

Partnership     26 

(v) 


vi  table  of  contexts. 

Sec. 

Attorneys-at-Law — Surety  for  Their  Clients — Statutory  Prohibitions.  .  27 

Corporations     28 

National    Banks    29 

L'ltra   Vires   Contracts    30 

Implied  Power  to  Become  Surety  31 

Principal  Under  Duress    32 

Non-Residents    33 

Surety   and   Guaranty   Companies    34 


CHAPTER  III. 

EXECUTION  OF  THE  CONTBACT. 

Consideration    ~..  ■  35 

Indorsing  Note  Before  and  After  Execution 36 

Surrender  of  Old  Note  for  New  Note 37 

The  Consideration  Must   Be   Legal 38 

Concurrent   Contracts    39 

The  Surety's  Promise  Being  the  Inducement 40 

Executed  Contract    41 

Extension  of  Time — Promise  of  Third  Person  to  Pay 42 

Agreement  to   Forbear  for  an   Indefinite  Time 43 

An  Agreement  Must  Be  Made  to  Forbear 44 

Offer  to  Become  Surety  for  Another 45 

Extension  of  Time — Agreement  to  Pay  Interest 46 

Both   Parties   Must   Be   Bound 47 

Extension  of  Time  by  Paying  Interest — Contrary  Doctrine 48 

Delivery   of   Contract    49 

Delivery  in  Escrow 50 

Wrongful  Delivery  by  Principal   51 

Imperfect   Instrument    52 

Surety's  Name  Not  Appearing  in  the  Body  of  the  Instrument 53 

Principal  Not  Signing — Name  in  Body  of  the  Instrument 54 

Alteration   of   Instrument    55 

Filling  Blanks — As   to   Surety's   Liability 56 

Negotiable   Notes    57 

Surety    Signing   as    Principal    58 

ipel  of  Surety  to  Deny  Recitals  in  the  Instrument 59 

Denying   Valid   Appointment   of    Principal    60 

Sureties   Cannot   Deny    the   Incorporation   of   Corporate   Bodies   With 

Whom    Their    Principal    Deals 61 

Mirt'n  Jurisdiction    62 

ing  Bond  in  Collate)  el]  Proc lings  63 

Relation  After  Judgment   64 

Effect  <>f  Judgment  on  Surety   65 


TABLE    OF    CONTENTS.  Vll 

CHAPTER  IV. 

SCOPE    OF    SURETY^    LIABILITY. 

SBC. 

Extent  of  Surety's  Contract GO 

Construction   of    Contract — At   Law 67 

Construction  of  Contract — In  Equity   68 

Liability   for   Past   Defaults   of   Principal 69 

Liability   Limited   to  a   Fixed  Time 70 

lime  Limited  to  a  Subsequent  Period   71 

Employment  or  Condition  Changed  by  Employer  or  by  the  Legislature.  72 

</  Sureties   in   Legal   Proceedings — Order   of   Liability 73 

Only  Liable  for  the  Penalty  of  the  Bond 74 

Misapplication   of   Funds 75 

Increase  of  Funds    76 

Surety  May  Limit  His  Liability    77 

Forged  Signature    78 

Additional   Employment    79 

Act  of  Principal  Not  in  Line  of  His  Business 80 

Becoming  Surety  for  Payment  of  Rent 81 

Tenant  Holding  Over    82 

Principal  Associating  With  Others  83 

Several    Principals — Partnership    84 

Death   of   Surety    85 

Construing  a  Joint  Obligation  as  Several 86 

Revoking  Suretyship    87 

Default  of  Principal    88 

Revival  of  Surety's  Liability    89 

Part  Payment  by  One  of  Several  and  Joint  Debtors 90 

Absence  of  Principal  from  the  State 91 

Disability    of    Princinal    92 

Conflict  of  Laws    93 


CHAPTER  V. 

DISCHARGE    OF    SURETY. 

Payment  of  Debt  Discharges  the  Surety 94 

What  Acts  by  Principal  Will  Discharge  the  Surety  After  Judgment.  .  95 

Legality  of  Payment   96 

Application   of    Payment 0" 

Application  by  Law    98 

Note  Payable  to  a  Bank — Application  of  Debtor's  Deposit T9 


YU1  TABLE    OF    CONTENTS. 

Sac. 

Change  of  the  Principal  Contract 100 

When  the  Surety  is  Not  Discharged  by  Change  of  Contract 101 

Alteration  of  the  Instrument   102 

Material   Alteration   of   Instrument    103 

Commercial    Instruments    104 

Change  of  Date   105 

Alteration   of   Amount    106 

Alteration  of  Rate  of  Interest 107 

Changing  of  Place  of  Payment 108 

Destroying  the  Identity  of  the  Contract 109 

Addition  of  a  Surety  to  a  Note 110 

Changing  the  Contract  of  a  Lease  Signed  by  a  Surety Ill 

Building   Contracts    112 

Extension  of  Time  of  Payment 113 

Consideration     114 

Effect  on  Surety's  Contract  by  Taking  Usury  for  Extension 115 

Effect  of  Creditor's  Reservation  of  His  Remedies  Against  Surety 116 

Extension  with  Consent  of  Surety 117 

Waiver    of   Discharge    118 

Extension  Must  Be  for  a  Time  Certain  119 

Giving  Time  to  One  or  More  Sureties 120 

What  is  a   Promise  of   Extension 121 

Accepting   a   New   Note    122 

Taking  Collateral  Security 123 

Personal  Judgment  for  Deficiency 1?4 

Fraud — Extension   of   Time 125 

Fraud  to  Induce  Surety  to  Sign  Contract 126 

Notice  to  Creditor  of  Principal  Debtor's  Dishonesty 127 

Negligence  of  Creditor  in  Not  Availing  Himself  of  the  Debtor's  Means.  128 

Surety  Signing  Upon  Condition   129 

Surrendering    Security    130 

Taking  Property  by  Attachment  and  Execution 131 

Failure  to  Apply  Securities    132 

Release  of  Co-surety 133 

Failure  of   Creditor  to   Sue   Principal 134 

Disaffirmance  of  Contract  by  Principal 135 

Fraud    Upon  the   Principal    136 

Substitution  of  Securities  137 

Payment  of  Consideration  in  Installments — Building  Contracts 138 

lender  of  Payment   13f 


TABLE    OF    CONTENTS.  IX 

CHAPTER  VI. 

RIGHTS   AND  REMEDIES   OF   SURETY  AS   TO   CREDITOR. 

SEC. 

The  Contract  in  General   140 

Diligence  of  Surety 141 

Facts  Concealed — Not  Connected  With  the  Contract 142 

Facta  Developed  Subsequent  to  the  Contract 143 

Set-off  and  Recoupment 144 

( '(impelling  Creditor  to  Bring  Suit 145 

Effect  of  Notice  by  Surety  to  Creditor  to  Proceed  to  Collect  Debt 146 

Creditor's  Promise  to  Look  to  the  Principal  Only 147 

Creditor  Informing  the  Surety  that  the  Debt  is  Paid 148 

Surety  May  Compel  Creditor  to  Resort  to  Securities  in  the  Creditor's 

Hands    149 

Right  of  Surety  to  Defend  Action  Brought  Against  His  Principal 150 

Subrogation  of  Creditor  to  Surety's  Securities 151 

Subrogation  of  Surety  to  Creditor's  Rights 152 

What  Securities  the  Surety  is  Entitled  to  Claim 153 

When  Surety  Can  Take  Securities 154 

Stranger  Paying  Debt 155 

When  Surety  Will  Not  Be  Subrogated 156 

Surety  Must  First  Pay  the  Debt 157 

What  is   Payment    158 

Debtor  and  Creditor 159 

Fraudulent   Conveyances   of  Principal    160 

As  to  Exemptions  of  Principal 161 

Where  Surety  Owes  Principal   162 

Payment  of  a  Specialty  or  Judgment  163 

Extent   of    Subrogation    1 G4 

Surety  of  Surety    165 

Co-sureties    166 

Joint  Debtors    167 

Successive  Sureties  in  Judicial  Proceedings 168 

Guarantors    169 

Surety's  Defense — In  Courts  of  Equity  or  of  Law 170 

Remedies   of   Creditor 171 

Death  of  Principal    172 

Debt  Barred  Against  the  Principal  * 173 


CHAPTER  VII 

RIGHTS    AND    REMEDIES    OF    SUR'^rY   AS    TO    PRINCIPAL. 

Liability  of  Principal  to  Surety 174 

Payment  Before  Due  by  Surety. _..._ 175 


x  table  of  contents. 

Sm. 

Part    Payment  by   Surety    176 

The  Surety  Must  Be  Under  a  Legal  Obligation  to  Pay 177 

Proper  Action  For  Surety  to  Bring  Against  Principal 178 

Surety  to  One  of  Partners 1"9 

Surety  Giving  His  Own  Note  in  Payment  of  the  Debt 180 

Debt  Satisfied  Out  of  the  Surety's  Property 181 

When  the  Surety's  Right  of  Action  is  Complete 182 

Liability  of  Principal  for  Surety's  Costs  and   Interest 183 

Recovery  of  Consequential  Damages 184 

Payment  of  Usury  by  the  Surety 185 

What  Amount  the  Surety  Can  Collect  from  the  Principal 186 

Joint  Suit  by  Sureties 187 

Payment  of  Judgment  by  Surety 188 

Right  to  Take  Indemnity  from  the  Principal 189 

When  the  Principal  is  Not  Liable 190 

Voluntary   Payment   by    Surety 191 

Statute  of  Limitations  as  Between  Surety  and  Principal 192 

Relief  of  Surety  in  Equity 193 


CHAPTEB  VIII. 

EIGHTS    OF    CO-SURETIES. 

Rights   to   Contribution    194 

Payment   by  Note    195 

Enforcement   at   Law    196 

Enforcement  in  Equity   197 

The  Co-surety  Cannot  Speculate  to  the  Injury  of  His  Co-surety 198 

Surety  of  a  Surety    199 

Obligation  to  Contribute 200 

Liability  of  Surety's   Estate 201 

Remedy  against  Co-surety  Before  Payment 202 

Co-sureties    Under   Different    Instruments 203 

The  Obligation  Must  Be  the  Same 204 

Co-sureties  Limiting  Their  Liability  in  Different  Amounts 205 

Accommodation    Indorsers 20 1 

Surety  in  Legal  Proceedings   207 

Indemnity    to    One    Surety     208 

Liability  to  Contribute  on  Successive  Bonds 209 

Admissibility  of  Parol  Evidence  to  Show  that  Parties  on  a  Promissory 

,.  nrf.  Co-suretieB   210 

Btfctutc  ot   Limitations    211 

Bankruptcy  ol  Co-surety 212 


TABLE    Oi''    CONTENTS.  XI 

CHAPTER  IX. 

sureties  on  bonds   in   legal   peoceedings. 

Sec. 

Discharge  of  Surety  on  Dissolution  of  Attachment 213 

Exoneration   of   Sureties   on   Attachment   Bonds 214 

Judgment   of   Non-suit    215 

Attachment  Lien   Being  Discharged — Insolvency  of   Debtor 216 

Increase  of   Claim  by  Amendment  of   Declaration 217 

Bringing   In   New   Parties  as   Defendants 218 

Trespass  of  Officer    219 

Delivery  Bond — Rights  of  Surety  as  to  Property 220 

Void  Bond    221 

Damages    222 

The  Surety  is  Concluded  by  the  Judgment  Against  the  Principal ....  223 

Appeal   Bond — Discharge   of   Surety 224 

Appeal  to  a  Special  Court   225 

Change  of  Issue  and   Parties 226 

Enlargement   of   Claim 227 

Agreement  of  Litigants    228 

Successive    Appeal    Bonds    229 

Indemnity   Bonds    230 

Liability  on  Indemnity  Bonds    231 

Injunction  Bonds — Liability  of  Surety   232 

When  Suit  May  Be  Brought  for  Breach 233 

Liability,  Joint  and  Several    234 

What  Law  Governs    235 

Dissolution  by   Series   of   Orders    236 

Concluded  by  Judgment   Against   Principal    237 

Replevin    Bond    23S 

Discharge  of  Surety   239 

New   Parties — Substitution    240 

Varying  the  Terms  of  the  Bond 241 


CHAPTER  X. 

BONDS    OF    PERSONS    ACTING    UNDER    JUDICIAL    SANCTION. 

Executors  and   Administrators 242 

Estoppel  by  Judgment  Against  Principal 243 

Income  of  Real   Estate    244 

Sale  of  Real  Estate  Beyond  Jurisdiction  of  Court 245 

Surety  is  Liable  only  for  Principal's  Acts 24b 


XU  TABLE    OF    CONTENTS. 

Sec. 

Giving  New  or  Additional  Bond  247 

Liability  of  Discharged   Surety    248 

Sureties  on  Joint  Bond    249 

Allowance  to  Intestate's  Widow  and  Family    250 

Executor  or  Administrator  Debtor  to  the  Estate 251 

Common  Law  Rule  as  to  Executor  Being  Debtor  to  the  Estate — Statu- 
tory Provisions   252 

General  Liability  of  Sureties 253 

Same  Person  Administrator  of  One  Estate  and  Executor  of  Another . .  254 

Executor  or  Administrator  Acting  in  Other  Fiduciary  Capacity 255 

Failure  to  Return  Inventory  or  to  Account 256 

Release  of  Surety    257 

When  Right  of  Action  Arises  Against  Sureties 258 

Sureties  of  Guardian — General  Liability   259 

Giving  Additional  Security 260 

Guardian  Selling  Real  Estate 261 

Discharge  of   Surety    262 

Termination  of  Surety's  Liability  263 

When  Action  Upon  the  Bond  Accrues    264 

Estoppel  by  Judgment  Against  Principal   265 

Estoppel  by  Recital  in  Bond 266 

Joint  Guardians    267 

Joint  Bond  Instead  of  Several   268 

Extent  of  Surety's  Liability   269 

Revival   of  Liability  by   Surety 270 

Receiver's    Bond — Liability   of    Surety 271 

Right  of  Action  Against  Surety  on  Receiver's  Bond 272 

When  Surety  is  Concluded  by  Decree  of  Court 273 

Funds  Coming  Into  the  Hands  of  the  Receiver 274 

Giving  a  New  Bond 275 

Extent  of  Surety's  Liability 276 

Liability  of  Surety  on  Assignee's  Bond 277 

E  t oppel  of  Surety 278 

Gi\     g  New  Bond    279 

Default  of  Assignee   280 

Discharge  of  Surety  281 


CHAPTER  XL 

BONDS    OF    PRIVATE    OFFICERS    A.ND    AGENTS. 

Duration  of  Surety's  Liability 282 

Continuing  Liability  of  Surety 283 

Restriction  of  Surety's  Liability  by  Recitals  in  the  Bond 284 


TABLE    OF    CONTENTS.  Xlll 

Sec. 

Aa  to  the  Scope  of  the  Officers'  Employment 28i> 

Increase  of  Capital   Stock  of  Corporation 2St> 

Discharge   of   Surety    by    Fraud 287 

Bond  Covering  Prior  and  Subsequent  Defaults 288 

Principal    His    Own    Successor 289 

Continuing  Principal  in  Office  After  Known  Defaults 290 

Delinquency   of   Obligee    291 

Failure  to  Discharge  Delinquent 292 

Failure  to  Notify  Surety  of  Default 293 

Covenant  Not  to  Sue  294 

Accord  and  Satisfaction    295 

Notice  of  Surety's  Withdrawal   29G 

Discharge  by  Acts  of  the  Obligee 297 

Action  on  the  Bond 298 

Sureties  Concluded  by  Recitals  in  a  Bond   299 

Liability  for  Loss  of  Money   300 


CHAPTER  XII. 

BONDS  OF  PUBLIC  OFFICERS  AND  AGENTS. 

Extent  of  Surety's  Liability    301 

Liability  of  Surety  for  Previous  Defaults  of  the  Officer 302 

Presumption  as  to  Sureties  on  a  Second  Bond 303 

De    Facto    Officers    304 

Officers  Holding  Over  305 

Death   of   Officer 306 

Money  Used  to  Cover  Previous  Delinquencies   307 

Giving  Second  Bond  in  Same  Term    30S 

Giving  Bond  Without  Statutory  Authority 309 

General  and  Special  Bonds  Given  by  an  Officer 310 

Sureties  are  Liable  Only  for  Their  Principal's  Official  Acts 311, 

Subsequently  Imposed  Duties    312 

Subsequently  Imposed  Duties  by  the  Legislature 313 

The  State  is  Not  Responsible  for  Its  Officers'  Acts 314 

Forgery  of  Prior  Surety's  Name 315 

Money  Lost  or  Stcden  from  Principal    310 

Depositing  Public  Moneys  in  Bank 317 

Making  Profits  on  Public  Funds 318 

Interest   Recovered   After   Breach    319 

Liability  of  Sureties  as  to  Payment  of  Penalties 320 

Estoppel   by  Judgment    321 

Sheriffs  and  Constables   322 

Scope  of  Liability    323 


xiv  table  of  contents. 

Sec. 

Levying  on  a  Stranger's  Property  and  on  Property  Exempt 32  i 

Officer's  Liability  for  Ministerial  Ihities 325 

Duty  to  Individuals  and  to  the  State 326 

Amount  of  Surety's  Liability   327 

Liability  of  Surety  After  Term  Expires 32S 

Surety's  Liability  on  Bond  of  Clerks  of  Court 329 

Compensation  of  Clerks    330 

Failure  to  Pay  Over  to  Successor  in  Office  or  to  Proper  Party 331 

Money  Paid  Into  Court  on  Judgment  or  by  Order  of  Court 332 

Delinquencies  of   Clerks    333 

Sureties  of  Justices  of  the  Peace 334 

Police    Officers    335 

Surety  of  Notary  Public 336 

Tax   Collector    337 

Subrogation  of  Surety  on  Official  Bond 338 


CHAPTER  XIII. 

GUARANTY. 

Definition    339 

Classification  of  Guaranties  as  to  Their  Nature 340 

Consideration     341 

Executory  Consideration 342 

Moral   Obligation    343 

As  to  Consideration,  Guaranties  Are  of  Two  Kinds 344 

Guaranties  Where  the  Consideration  is  Entire 345 

Guaranties   Where  the  Consideration   Passes   at   Different   Times   and 

is  Separable   346 

Indorsement  Before  and  After  Delivery  of  Note 347 

Offer   and   Acceptance    348 

Guaranty  of  Payment   349 

Conditional  Guaranty    350 

Guaranty  of  Illegal  Contracts    351 

Default  of  Payment — Notice  to  Guarantor 352 

Notice  of  Default   353 

Continuing   Guaranty    354 

Letters  of  Credit  May  Be  a  Continuing  Guaranty 355 

Construction   of    Contract    356 

Negotiability  of  Guaranty  357 

Negotiability   of   (Guaranty    Under   Seal 358 

Guaranty  of  Collection 359 

What    is    Due    Diligence .SfiO 

Discharge   of    Guarantor    361 


TABLE    OF    CONTENTS.  XV 

Sec. 

Discharge  by  Change  in  the  Principal  Contract 3G2 

Discharge  by  Extension  of  Time 3G3 

Discharge  by  Release  or  Negligent  Loss  of  Securities 364 

By   Fraud   and   Duress    365 

Guaranty  Covers   Defects   in  the  Original   Contract — Failure  of  Con- 
sideration      366 

Revocation  of  a  Continuing  Guaranty 367 

Death   of   Guarantor    368 

Release  of  Co-guarantor   .v 369 

What  Law  Governs 370 

(Statute  of  Limitations    371 

Payment  of  Debt  by  Guarantor  372 


CHAPTER  XIV. 

GUARANTY  WITHIN  THE  STATUTE  OF  FEAUDS. 

Fourth  Section  of  the  Statute  of  Frauds 373 

When  the  Promise  is  Within  the  Statute 374 

Effect  of  the  Statute  of  Frauds 375 

Principal  Debtor — Incapacity  to  Contract   376 

New    Consideration    377 

Consideration   for  Promise    378 

Third  Party  Taking  Debtor's  Property 379 

If  Third  Person  is  Not  Liable 380 

Original  Consideration    381 

Oral  Promise  to  Indemnify  Another   382 

Indemnity  Contracts  in  General   383 

What  is  a  Sufficient  Consideration  3S4 

Novation    385 

Promise  to  Pay  the  Debt  of  Another — Statute  of  Frauds 386 

Promise  to  the  Debtor  to  Pay  His  Debt 387 

To  Whom  Credit  is  Given   388 

Indorsing  and  Executing  Notes  for  Another 389 

Assignment  of  Promissory  Notes   390 

Agreeing  to  Pay  Debt  of  Contractor 391 

Relinquishment  of  a  Lien    392 

Promise  to  Perform  the  Obligation  of  Another 393 

Del  Credere  Contracts   394 

To  Whom  the  Promise  Must  Be  Made. 395 

Contract  for  the  Benefit  of  the  Promisor 39g 

Special  Promise — When  Original  Debtor  is  Released 397 

Sale  of  Goods — Liability  of  Third  Party 39g 


xvi  table  of  contents 

Sec. 

Joint    Liability 399 

Oral  Contract  of  Insurance 400 

To  Answer  for  the  Tort  of  Arother 401 


CHAPTER  XV. 

BAIL. 

Bail    Defined 402 

Distinction  Between  Bail  and  Mainpernors 403 

Arrest  in  Civil  Action 404 

Obligation  of  Bail 40-5 

Eights    of    Bail 40C> 

Extent  of   Liability 407 

Discharge  of  Principal  in  Bankruptcy  or  Insolvency 408 

Payment  By  Imprisonment  of  Principal 409 

Different  Sets  of  Sureties 410 

Exoneration   of   Bail 411 

Exoneration  By  Performance  of  Condition 41:2 

Bail   in   Criminal   Cases 413 

Rights  and  Liability  of   Bail 414 

Implied  Contract  of  Indemnity  to  Bail 415 

Express  Contract  of  Indemnity  to  Bail 416 

Extent  of  Sureties'   Liability 417 

Costs 418 

Joint  and  Several  Liability  of  Sureties 419 

Effect   of    Pardon 420 

Delivery  of  Principal  By  Bail  to  the  Proper  Officer 421 

Bail    on    Appeal 422 

Appearance   of   Principal 423 

Re-arresting  Principal  on  the  Same  Charge 424 

Giving  a  New  Bond 425 

Arresting  Principal  on  a  Different  Charge 426 

Sureties  Are  Released  by  a  Change  of  Their  Obligation 427 

Exoneration  of  Bail  By  Act  of  God 428 

Exoneration  by  Act  of  Law 429 

Exoneration  By  Act  of  Obligee 430 

Exoneration  of  Sureties  In  General 431 

Subrogation  in  Criminal  Cases 432 

Effect  of  Forfeiture  of  Bond 433 

Setting   Aside   Forfeiture 434 

Voluntary  Appearance  or  Arrest  After  Forfeiture — Costs 435 

Effect  of  Remission  of  Forfeiture 436 

Taking  Money  in  Lieu   of   Bail 437 


THE    LAW 


OF 


Suretyship  and  Guaranty. 


CHAPTER  I. 

NATURE  AND  EFFECT. 


Sec.  1.  Principal. — The  principal  is  the  debtor  who  is  prim- 
arily liable.  lie  is  primarily  concerned  and.  therefore,  cannot  be 
an  accessory  or  ancillary.  The  contract  of  indebtedness  is  made 
by  the  principal,  who  is  liable  to  pay  the  debt,  though  the  surety 
is  also  liable.  They  can  in  most  States  be  sued  jointly  or  sever- 
ally. But  the  obligation  of  the  surety  is  to  the  creditor  or 
obligee,  and  not  to  the  principal  ;*  and  the  liability  of  the  surety 
cannot  exceed  that  of  the  principal.2  And  the  surety  has  a 
right  to  be  protected  by  his  principal,  and  can  enforce  that  right 
when  the  principal  is  financially  responsible.3  The  suretv  is 
liable  to  the  obligee  or  creditor  to  the  same  extent  as  the  princi- 
pal, and  such  liability  need  not  be  fixed  by  judgment.4 

At  common  law  a  principal  and  surety  could  be  joined  as 
parties  defendants  only  in  an  action  where  their  undertaking 
was  joint  or  joint  and  several.5  But  now  in  most  of  the  States 
they  can  be  sued  jointly  or  severally  whether  their  undertaking 
is  joint  or  several. 

'Benjamin  v.  Ver  Nooy,   36   App.  Div.  581. 

'United  States  v.  Allsburg,  4  Wall.   186. 

"Roberts  v.  Trust  Co.,  83  111.  App.  463;  Fritch  v.  Bank,  191  Pa.  St.  283. 

*Kroncke  v.  Madseon  (Neb.),  77  N.  W.  Rep.  202;  Judge  v.  Sulloway, 
68  N.  H.  511. 

•People  v.  Miller,  2  111.  83;  Castner  v.  Slater,  50  Me.  212;  Lee  v.  Bolles, 
20  Mich.  46. 


2  SURETYSHIP  AND  GUARANTY.  (Ch.  1 

§  2.  Surety. — A  person  who  engages  to  be  answerable  for  the 
debt,  default  or  miscarriage  of  another  is  a  surety.  He  under- 
takes to  pay  the  debt  if  the  principal  does  not.0  He  is  an  insurer 
of  the  debt.7  The  surety  assumes  to  perforin  the  contract  of  the 
principal  if  he  should  not,  and  if  the  act  which  the  surety 
undertakes  to  perform  through  the  principal  is  not  done,  then 
the  surety  is  liable  at  once.8 

A  surety  is  usually  bound  with  his  principal  by  the  Fame 
instrument,  executed  at  the  same  time  and  with  the  same  con- 
sideration. He  is  an  original  promisor  and  debtor  from  the 
beginning,  and  must  know  every  default  of  his  principal.  He 
is  bound  with  and  for  another,  who  is  primarily  liable,  and  who 
is  called  the  principal.  The  surety  engages  to  answer  for 
another's  appearance  in  court,  or  for  his  payment  of  a  debt,  or 
for  the  performance  of  some  act. 

§  3.  Co-surety. — Persons  are  co-sureties,  so  as  to  give  the 
right  of  contribution,  when  they  are  bound  for  the  performance, 
by  the  same  principal,  of  the  same  obligation,  and,  whether  they 
become  so  at  the  same  time  or  at  different  times  by  one  or  several 
instruments,  even  if  they  are  bound  in  different  sums,  or  if  each 
is  ignorant  that  the  others  are  sureties — does  not  affect  the 
relation  nor  the  right.  Thus,  where  a  party  is  surety  for  $2,000, 
and  another  party  becomes  surety  for  $1,000  for  the  same  debt 
by  the  same  principal  and  has  to  pay  that  amount,  he  may  have 
contribution  from  the  first  surety,  who  is  ignorant  of  the  second 
contract  of  surety,  it  being  at  a  different  time  and  by  a  different 
instrument.9  But  this  doctrine  does  not  hold  where  the  obliga- 
tions are  for  wholly  distinct  things,  though  arising  from  the 
same  principal  indebtedness;  where  the  obligations  have  no  rela- 
tion to  nor  operation  upon  one  another,  though  they  arise  from 

'  Mr-Intosh-Huntington  Co.  v.  Reed,  89  Fed.  Rep.  464. 

'Kramph  v.  Hatz,  52  Pa.  St.  525. 

•Reigart  v.  White,  52  Pa.  St.  438. 

•Ellesmere  Brewing  Co.  v.  Cooper  (1896),  2  Q.  B.  75;  Galson  v.  Brnnd, 
75  111.  148;  Robinson  v.  Boyd,  60  Ohio  St.  157;  Young  v.  Shunt,  30  Minn. 
503;  Warner  v.  Morrison,  3  Allen,  566;  Rnsenbaum  v.  Goodman,  78  Vx. 
121  j  Aspinwall  v.  Bacchi,  57  N.  Y.  331;  Deering  v.  Winchelsea,  1  Cox,  318. 


§4)  NATURE    AND    EFFECT.  3 

the  same  principal  indebtedness,  the  parties  are  not  co-sureties. 
Thus,  A,  B  and  C  are  sureties  on  D's  bond.  D  makes  default, 
judgment  is  rendered  against  him  and  an  execution  is  levied  on 
his  goods.  He  gives  a  forthcoming  bond,  signed  by  A  and  B  as 
sureties.  A  second  default  is  made  by  D  on  this  forthcoming 
bond,  and  A  paid  the  amount  and  then  endeavored  to  have  contri- 
bution from  C,  who  was  on  the  original  bond,  but  not  on  the 
forthcoming  bond.  Here  the  obligations  are  not  the  same,  as 
C  is  not  A's  co-surety.10 

§  4.  Distinction  Between  Suretyship  and  Guaranty. — 
The  distinction  between  the  obligation  of  suretyship  and  guar- 
anty, is  that  the  surety  undertakes  to  pay  if  the  principal  does 
not ;  while  the  guarantor  undertakes  to  pay  if  the  principal  can- 
not; that  is,  if  he  is  insolvent  and  unable  to  pay.11  The  surety 
is  directly  liable  to  the  creditor  for  the  act  to  be  performed, 
while  the  guarantor  is  liable  only t for  the  ability  of  another  to 
perform  this  act.  The  undertaking  under  suretyship  is  immedi- 
ate and  direct  that  the  act  shall  be  done ;  if  not  done,  the  surety 
becomes  at  once  responsible.  In  the  case  of  guaranty,  non- 
liability of  the  debtor,  that  is,  his  insolvency,  must  first  be  shown 
before  the  guarantor  becomes  liable.12 

In  a  strict  guaranty  the  guarantor  does  not  undertake  to  do 
the  thing  which  his  principal  is  bound  to  do,  but  his  obligation 
is  that  the  principal  shall  perform  such  act  as  he  is  bound  to 
perform,  or  in  the  event  he  fails  that  the  guarantor  will  pay 
such  damages  as  may  result  from  such  failure.  So  when  there 
is  in  any  instrument  a  promise  or  undertaking  on  the  part  of  a 
person  executing  it  to  do  a  particular  thing  which  another  is 
bound  to  do,  in  the  event  such  other  person  does  not  perform 
the  act,  it  is  an  original  undertaking  and  not  a  strict  or  collateral 
guaranty.     It  is  an  undertaking  in  the  nature  of  a  surety,  and 

10  Harrison  v.  Lane,  5  Leigh,  414;  Langford  v.  Perrin,  5  Leigh,  552; 
Rosenbaum  v.  Goodman,  78  Va.  121 ;  Hutchinson  v.  Roberts,  8  Houst. 
(Del.)    459. 

11  Mcintosh-Huntington  Co.  v.  Reed,  89  Fed.  Rep.  464;  Kramph  v.  Hatz, 
52  Pa.  St.  525.     See  sec.  339. 

11  Reigart  v.  White,  52  Pa.  St.  440. 


4  SURETYSHIP  AND  GUARANTY.  (Ch.  1 

the  person  bound  by  it  must  take  notice  of  the  default  of  his 
principal.13 

The  contract  of  a  guarantor  is  collateral  and  secondary ;  that 
of  the  surety  is  direct ;  the  guarantor  contracts  to  pay  if  by  the 
use  of  due  diligence  the  debt  cannot  be  made  out  of  the  principal 
debtor,  while  the  surety  undertakes  directly  for  the  payment  and 
is  so  responsible  at  once  if  the  principal  debtor  makes  default.14 
The  surety  is  an  insurer  of  the  debt,  the  guarantor  of  the  solv- 
ency of  the  debtor.  The  contract  of  the  guarantor  for  collection 
is  conditional  on  the  creditor's  diligence  to  collect  the  debt;  a 
mere  delay  will  not  release  a  surety.  To  be  released  the  surety 
must  demand  proceedings  with  notice  that  he  will  not  be  bound 
if  they  are  not  instituted.15  A  guaranteed  contract  of  collection 
becomes  absolute  only  by  due  and  unsuccessful  diligence  to 
obtain  satisfaction  from  the  principal  debtor.16  Thus,  a  delay 
of  more  than  two  years  to  enter  judgment  notes  against  a  failing 
debtor  discharges  the  guarantor.17  So  delay  of  eight  years  to 
sue  a  note  discharges  the  guarantor  of  the  debt.18 

A  surety  is  in  the  first  instance  answerable  for  the  debt  for 
which  he  makes  himself  responsible;  his  contracts  are  often 
specialties;  while  the  guarantor  is  only  liable  where  default  is 
made  by  the  party  whose  undertaking  is  guaranteed,  and  his 
agreement  is  one  of  simple  contract.  The  surety  is  not  entitled 
to  notice,  and  is  not  discharged  by  the  insolvency  of  the  principal 
for  want  of  notice,  although  the  principal  debtor  was  solvent 
when  the  debt  became  due.  In  regard  to  a  guarantor,  if  the 
debt  is  not  paid  at  maturity  by  the  principal  and  he  is  solvent 
at  the  time,  the  guarantor  will  be  discharged,  if  he  has  not 
received  notice,  if  the  principal  shall  become  insolvent.  The 
guarantor  is  entitled  to  notice  within  a  reasonable  time  that  the 

"Woods  v.  Sherman,  71  TV  St.  100;  Riddle  v.  Thompson.  104  Pa.  St. 
330;  Wrighl  v.  Griffith,  1-21  Ind.  47S. 

"Kearnes  v.  Montgomery,  4  W.  Va.  29;  Bailey  Loan  Co.  v.  Seward, 
0    S.    Dak.   320. 

"Krampfa  v.  Hat/.,  52  Pa.  St.  .r)2.r>. 

"Gilbert  v.  Benck,  30  Pa.  St.  205. 

17  Miller  v.  Berby,  27  Pa.  St.  317. 

"  Isett  v.  Hoge,  -i  Watt-.  128. 


§    5,  6)  NATURE    AND    EFFECT.  5 

debt  is  not  paid  when  due,  and  if  not  notified  he  will  be  dis- 
charged when  he  can  show  a  direct  injury  for  want  of  notice.19 

There  is  also  a  distinction  between  guaranty  of  payment  and 
guaranty  of  collection.  A  guaranty  of  payment  is  an  absolute 
unconditional  undertaking  on  the  part  of  the  guarantor  that  the 
maker  will  pay  the  note,  while  a  guaranty  of  collection  is  an 
undertaking  to  pay  if  payment  cannot  by  reasonable  diligence  be 
obtained  from  the  principal  debtor.20  However,  there  are  two 
lines  of  decisions,  which  cannot  be  reconciled,  as  to  guaranty  of 
payment,  whether  absolute  or  conditional.21 

§  5.  How  Created. — Suretyship  may  be  created  by  express 
contract  of  the  parties,  or  by  the  operation  of  law.  Where  there 
is  an  express  contract,  the  relation  does  not  exist  when  the  party 
contracting  is  the  direct  beneficiary,  and  the  contract  is  entered 
into  by  him  for  his  own  benefit,  for  then  he  is  principal  and  not 
surety.22  There  is  no  difference  between  a  suretyship  created 
by  law  and  created  by  acts  of  the  parties.23 

§  6.  Nature  of  Surety's  Liability. — Whether  a  surety's 
liability  is  a  debt  is  a  question  not  answered  the  same.  It  has 
been  held  that  the  obligation  of  a  surety  or  indorser  is  not  a 
debt,24  because  the  liability  is  contingent;  and  it  is  not  a  debt 
until  the  indorser  is  obliged  to  pay  the  note.25  Hence,  a  surety 
on  a  note  not  yet  due,  before  payment  by  him,  cannot  claim  his 
liability  as  a  debt  which  he  may  prove  before  the  assignee  of  his 
principal,  nor  will  he  be  barred  from  his  future  action  against 
his  insolvent  principal,  who  has  been  discharged  from  bank- 
ruptcy.26 

But  there  is  another  line  of  cases  that  hold  that  a  surety's 

"Courtis  v.  Dennis,  7  Met.  510. 

20  Cowes  v.  Peck,  55  Conn.  251;  Beardsley  v.  Hawes,  71  Conn.  39. 

21  See  sec.  339. 

2UVimberly  v.  Windham,   104  Ala.  409. 

23  Wyman  v.  Jones,  58  Mo.  App.  313. 

24  May  v.  Hammond,  144  Mass.  151. 
"Frothingham  v.  Haley,  3  Mass.  168. 

"Paul  v.  Jones,  1  Term  R.  599;  Frost  v.  Carter.  1  Johns.  Cas.  73.  See, 
also,  State  v.  Gambs,  68  Mo.  289;  Eddy  v.  Heath,  31  Mo.  141. 


.6  SURETYSHIP  AXD  GUARANTY.  (Ch.  1 

liability  is  a  debt.  So  a  surety  upon  an  official  bond  is  a 
debtor.27  Because  the  word  "  debt  "  includes  not  only  debts  of 
record  or  judgment,  but  also  obligations  arising  under  simple 
contracts  to  a  very  wide  extent;  and  it  includes  all  that  is  due 
to  a  man  under  any  form  of  obligation  or  promise.  Whatever 
the  law  orders  any  one  to  pay,  that  becomes  instantly  a  debt 
which  he  has  beforehand  contracted  to  pay.28  So  a  surety  on  a 
note  who  executes  a  mortgage  to  the  payee  for  securing  payment 
of  a  note,  is  a  debtor  entitled  to  have  the  value  of  the  mortgage 
deducted  from  the  whole  debt,29 

So  a  devise  to  executors  with  authority  to  sell  real  estate  of 
the  testator  for  the  payment  of  his  debts,  applies  as  well  to  a 
joint  and  several  bond  executed  by  him  as  surety  for  his  co- 
obligators  to  any  other  debts.30  So  where  the  condition  in  a 
chattel  mortgage  shows  that  the  mortgage  was  given  to  secure 
the  mortgagee  against  liability  as  an  indorser  for  the  mortgagor, 
the  mortgage  was  given  to  secure  a  debt  of  the  mortgagor.31 

§  7.  Ignorance  of  Co-surety's  Obligation. — It  is  wholly 
immaterial  that  sureties  sign  at  different  times  and  without  any 
agreement  to  become  joint  sureties.  The  law  raised  an  implied 
promise  from  the  mutual  relation  of  the  parties.  Hence,  it 
follows  that  it  does  not  make  any  difference  as  to  the  right  to 
claim  contribution  that  each  of  the  sureties  was  ignorant  that  the 
other  was  bound  with  him  for  the  payment  of  the  debt.  Their 
liability  exists,  although  they  are  bound  by  distinct  and  separate 
instruments.  It  is  sufficient  if  they  are  sureties  for  the  same 
debt  of  a  third  person.32 

§  8.  Substitution  of  Sureties. — If  one  set  of  sureties  has 
been  substituted  for  others  whose  liability  has  ceased,  the  former 

"Shane  v.  Francis,  30  Ind.  92. 
"Gray  v.   Bennett,   3  Met.   522. 
"Lanckton   v.   Wolcott,  0  Met.  305. 
■  Berg  v.  Radcliff,  <;  .l.-hns.  Ch.  302. 
"Gilbert  v.  Vail.  <',()  Vt.  266. 

"Cruvfhnrne    v.    Swinburne,    14   Ves.    1G0;    Sohram    v.   Werner,    85    Hun, 
293;  St. .v.. II  v.  Bank,  7S  V;i.  188;  Robinson  v.   Boyd,  GO  Ohio  St.  57. 


§    9,  10)  NATURE    AND    EFFECT.  7 

are  not  liable  on  the  last  instrument.  A  surety  may  pay  and  ex- 
tinguish the  original  obligation  by  his  own  note,  and  then  be 
entitled  to  contribution  from  his  co-sureties;  but  he  would  not 
be  entitled  to  contribution  if  the  original  obligation  is  paid  and 
discharged  by  a  new  note  of  the  principal  and  one  of  the  sure- 
ties.33 Thus,  where  an  insolvent  principal  and  one  of  several 
sureties  execute  their  note  instead  of  a  former  note,  the  surety 
upon  such  new  note  cannot  have  contribution  of  the  old  sureties 
on  the  old  note.34 

§  9.  Successive  Bonds. — Where  sureties  are  discharged  and 
new  sureties  taken,  the  two  sets  of  sureties  become  jointly  liable 
for  a  breach  of  the  bond  which  accrued  before  discharge,  and  the 
right  of  contribution  exists  as  between  co-sureties.  The  new 
bond  relates  back,  and  the  two  sets  of  sureties  are  jointly  liable 
for  breach  committed  prior  to  the  second  execution.35 

§  10.  Agreement  as  to  Liability  Among  Sureties. — Co- 
sureties may,  by  agreement  among  themselves,  so  far  sever  their 
unity  of  interest  and  obligation  as  to  determine  the  right  of 
contribution.36  A  surety  has  the  right  to  determine  for  himself 
on  what  condition  he  will  become  surety  and  to  fix  the  nature 
of  his  liability  as  between  himself  and  the  prior  maker ;  and  by 
agreement  between  him  and  said  principal,  the  liability  of  said 
subsequent  signer  may  be  made  that  of  all  sureties  for  all  the 
makers  who  have  signed  before  him.37  If  one  surety,  instead  of 
uniting  with  the  others,  signs  as  surety  for  the  others,  they  have 
the  right  of  contribution  against  him.  His  right  against  them 
is  not  for  contribution,  but  for  full  indemnity.38     And  when  the 

"White  v.  Colton,  52  Ind.  372;  Ballston  v.  Wood,  15  Iowa,  160. 

M_^il^SS^J^J^J^*  Tittle  v.  Bennett,  94  Ga.  405 ;  Chapman  v. 
GarbeiT^NebT  16. 

,B  Pinkstaff  v.  State,  59  111.  148 ;  State  v.  Berning,  74  Mo.  87 ;  Powell  v. 
Powell,  84  Cal.  234 ;  Schofield  v.  Churchill,  72  N.  Y.  565 ;  Choate  v.  Arling- 
ton, 116  Mass.  552;  Morley  v.  Metamora,  78  111.  394.     See  sees.  168,  209. 

"Robertson  v.  Deatharge,  82  111.  511. 

87  Baldwin  v.  Fleming,  90  Ind.  177. 

"Craythorne  v.  Swinburne,  14  Ves.  164;  McDonald  v.  Magruder,  3  Pet. 
470;  Hamilton  v.  Johnston,  82  111.  39;  Paul  v.  Berry,  78  111.  158. 


8  SURETYSHIP    AND    GUARANTY.  (Ch.    1 

old  note  is  superseded  by  a  new  note  made  by  the  sureties,  which 
is  to  be  void  if  the  old  note  is  paid,  this  is  a  renewal  and  not  an 
independent  indebtedness.39 

§  11.  Grantee  of  Mortgaged  Premises. — As  between  the 
grantor,  who  is  personally  liable,  and  the  grantee  of  mortgaged 
premises,  the  grantee  assuming  the  indebtedness,  the  grantee 
becomes  the  principal  and  the  grantor,  surety,  a  surety  for  the 
payment  of  the  debt,  with  a  surety's  right.40 

The  purchaser  who  assumes  the  payment  of  a  mortgage  by 
agreement  when  he  buys  the  mortgaged  land,  takes  upon  himself 
the  burden  of  the  debt  or  claim  secured  by  the  mortgage,  and,  as 
between  him  and  the  grantor,  he  becomes  the  principal,  and  the 
grantor,  or  mortgagor,  a  surety  for  the  payment  of  the  debt.41 

And  in  such  case,  if  the  mortgage  is  foreclosed  and  the  land 
sold  tc  pay  the  debt,  leaving  unpaid  a  portion  thereof,  which  the 
grantoi  pays,  the  latter  cannot  maintain  an  action  for  indemnity 
on  the  lecital  in  the  deed,  the  promise  therein  not  running  to 
him,  but  must  resort  to  an  action  on  the  implied  promise  of  in- 
demnity which  arises  in  every  instance  when  a  surety  pays  the 
debt  of  his  principal,  as  for  money  paid  for  the  use  of  the  prin- 
cipal.42 But  as  to  the  holder  of  the  note  and  mortgage,  both 
grantor  and  grantee  are  principals,  and  are  liable  to  the  creditor 
as  such  if  he  so  desires.43 

u  Bank  v.  Eyre,  107  Iowa,  13. 

"Insurance  Co.  v.  Hanford,  143  U.  S.  187;  Eiee  v.  Sanders,  152  Mass. 
108;  Ellis  v.  Johnson,  96  Ind.  377;  Cook  v.  Berry,  193  Pa.  St.  377;  Ayers 
v.  Dixon,  78  N.  Y.  318;  Palmeter  v.  Carey,  63  Wis.  426;  Webster  v.  Flem- 
ing, 178  III.  140;  Pratt  v.  Conway  (Mo.),  49  S.  W.  Rep.  1028;  Pingrey 
on  Mort.  868,  869. 

"George  v,  Andrews,  60  Md.  26;  Stephenson  v.  Elliott,  53  Kan.  550; 
Flagg  v.  Giltmaker,  98  111.  293;  Huyler  v.  Atwood,  26  N.  J.  Eq.  504;  Poe 
v.  Dixon,  60  Ohio  St.  124;  Comstock  v.  Drohan,  71  N.  Y.  13;  Calvo  v. 
Davies,  73  N.  Y.  211. 

48  Poe  v.  Dixon,  60  Ohio  St.  124:  Hill  v.  Wright,  23  Ark.  530;  Appleton 
v.  Baseom,  3  Met.  169;  Homes  v.  Weed,  19  Barb.  128;  Toon  v.  Goodrich,  2 
John?.  213:   Huntley  v.  Sanderson,  1  Cr.  &  M.  407:  2  Barnard.  26. 

"Jones  v   Poster,  175  Til.  450;  Tns.  Co.  v.  Hanford.  143  TJ.  P.  187. 

According  to  the  view  which  prevails  in  Illinois  and  some  other  States, 


§    12,  13)  NATURE    AND    EFFECT.  9 

§  12.  RiGirrs  of  Mortgagee — In  Equit*y  or  in  Law. — At 
law  it  was  formerly  held  that  the  contract  of  assumption  by  the 
purchaser,  being  made  with  the  mortgagor  and  for  his  benefit 
only,  creates  no  direct  obligation  of  the  purchaser  to  the  mort- 
gagee.44 But  it  was  held  in  equity  that  the  mortgagee  may  avail 
himself  of  the  right  of  the  mortgagor  against  the  purchaser; 
because  in  equity  a  creditor  shall  have  the  benefit  of  any  obliga- 
tion or  security  given  by  his  principal  to  the  surety  for  the  pay- 
ment of  the  debt.45 

In  the  United  States  the  trend  of  the  decisions  is  that  the  legal 
effect  of  the  transaction  is  to  leave  the  portion  of  the  purchase 
money  represented  by  the  incumbrance  in  the  hands  of  the  pur- 
chaser for  the  purpose  of  paying  the  indebtedness ;  the  promise 
being  made  for  the  benefit  of  the  holder  of  the  incumbrance,  he 
may  maintain  an  action  at  law  to  enforce  it.  Hence,  the  mort- 
gagee may  maintain  an  action  at  law  to  enforce  the  contract  of 
assumption  of  the  mortgage  debt  by  the  grantee.46  And  where 
several  mortgage  debts  are  assumed  each  mortgagee  may  sue  at 
law  in  a  separate  action  for  his  debt.47 

§  13.  The  Mortgagee  Must  Assent. — But  the  mortgagee 
must  consent  in  order  to  make  the  grantee  of  the  mortgaged 

a  covenant  to  assume  and  agree  to  pay  the  mortgaged  debt  by  the  grantee 
is  valid  and  may  be  enforced  by  the  mortgagee  against  him.  But  according 
to  the  New  York  rule,  which  is  followed  in  New  Jersey  and  some  other 
States,  such  covenant  is  construed  to  be  a  contract  of  indemnity  for  the 
benefit  of  the  grantor,  and  where  there  is  no  personal  liability  on  the 
grantor  none  passes  to  the  grantee.  For  a  discussion  of  this  subject,  see 
McKay  v.  Ward   (Utah),  57  Pac.  Rep.  1024. 

"Gandy  v.  Gandy,  30  Ch.  Div.  57,  67;  National  Bank  v.  Grand  Lodge, 
98  U.  S.  123,  124. 

45  Hampton  v.  Phipps,  108  U.  S.  260,  263;  Wright  v.  Morley,  11  Ves. 
12.  22. 

46  Keller  v.  Ashford,  133  U.  S.  610 :  Insurance  Co.  v.  Hanford,  143  U.  S. 
187 ;  Calvo  v.  Davies,  73  N.  Y.  211 ;  Bowen  v.  Beck,  94  N.  Y.  86;  Webster  v. 
Fleming,  178  111.  140;  Joslin  v.  Car  Spring  Co.,  36  N.  J.  L.  141;  Pingrey  on 
Mort.  869;  Bassett  v.  Hughes,  43  Wis.  319;  Lamb  v.  Tucker.  42  Iowa,  118; 
Bohanan  v.  Pope,  42  Me.  93;  Follanshee  v.  Johnson,  28  Minn.  311;  Town- 
send  v.  Long,  77  Pa.  St.  143;  Keedle  v.  Flack,  27  Neb.  836;  Anthony  v. 
Herman,  14  Kan.  494;   Thompson  v.  Thompson,  4  Ohio  St.  333. 

47Poe  v.  Dixon,  60  Ohio  St.  124. 


10  SURETYSHIP  AND  GUARANTY.  (Cll.  1 

premises  liable  as  principal  and  the  mortgagor  surety.  Until 
acceptance  by  the  mortgagee,  there  is  no  privity  of  contract 
between  him  and  the  grantee  of  the  mortgaged  premises.48  So 
where  the  grantee  expressly  promises  to  pay  the  mortgage  debt, 
that  alone,  without  the  assent  of  the  mortgagee,  does  not  change 
the  mortgagor  into  a  surety  merely.49  Whether  the  remedy  of 
the  mortgagee  against  the  grantee  is  at  law,  and  in  his  own  right, 
or  in  equity,  in  the  right  of  the  mortgagor,  must  be  determined 
by  the  law  of  the  place  where  the  suit  is  brought.50 

§  14.  Accommodation  Indorsee. — The  relation  of  an  ac- 
commodation indorser  and  the  party  accommodated  is  that  of 
principal  and  surety  as  between  themselves.51  It  has  been  held  by 
some  courts  that  an  accommodation  indorser  is  not  within  the 
statute  allowing  a  surety  to  require  the  creditor,  in  certain  cases, 
to  proceed  against  the  principal,  or  in  default  thereof  to  lose  his 
remedy  against  the  surety.52  But  in  other  jurisdictions  this 
rule  is  not  adopted,  and  an  accommodation  indorser  of  a  promis- 
sory note  stands  in  the  relation  of  surety  for  the  maker  for  whose 
accommodation  he  became  indorser,  within  the  meaning  of  the 
statute  in  relation  to  the  remedies  of  sureties  against  the  princi- 
pals.53 Where  a  party  gives  his  accommodation  note  to  another 
in  exchange  for  a  like  note  of  the  latter  to  him,  he  is  liable  on  his 
note  as  a  principal  and  not  as  a  surety,54  but  he  may  be  a  surety 
as  between  other  parties.55 

"Bank  v.  Kirkwood,  172  111.  563;  Insurance  Co.  v.  Hanford,  143  U.  S. 
187.     See.  Webster  v.  Fleming,  178  111.  140. 

"Shepherd  v.  May,  115  U.  S.  505;  Keller  v.  Ashford,  133  U.  S.  610; 
Bank  v.  Kirkwood,  172  111.  563:  184  111.  139,  overruling  in  effect,  on  this 
point,  Ray  v.  Williams,  112  111.  91. 

60  Insurance  Co.  v.  Hanford,  143  U.  S.  187. 

'  Hall  v.  Oberhellman,  23  Mo.  App.  336;  Clason  v.  Morris,  10  Johns. 
£24;    Sublett    v.  McKinmy,    10  Tex.   4.;s.      See  sec.    347. 

ik    v.    Barrett,    19   Mo.   39;    Bootsman's  Sav.   Bank  v.   Johnson,   20 

Mo.  App.  :ni;. 

■  Lacy  v.  Loftus,  26  Ind.  324;  Ward  v.   Stout,  32  111.  399;  Thompson  v. 
Taylor,  72  X.  Y.  32;    Van   Alstyne  v.  Sorley,  32  Tex.  518. 
"New-market  Sav.  Bank  v.  Hanson,  67  N.  H.  509. 
■Whitney  v.  Hale,  67  N.  H.  385.     See  sees.  206,  347. 


§     15,  16,  17)  NATURE    AND    EFFECT.  11 

§  15.  The  Acceptok  of  Drafts. — The  acceptor  of  a  bill 
and  the  maker  of  a  note  are  the  principals,  and  the  indorsers 
sureties.56  By  the  acceptance  of  a  draft,  the  acceptor  becomes, 
not  merely  the  surety  for  the  drawer,  but  the  principal  debtor.57 

§  16.  Indorsee  of  Notes. — Each  indorser  upon  bills  of 
exchange  or  promissory  notes  is  prima  facie  bound  to  indemnify 
each  subsequent  party  to  the  instrument,  and  has  a  right  to  be 
indemnified  by  each  prior  party  thereto.58  The  acceptor  or 
maker  is  the  principal  debtor,  and  then  the  drawer  and  indorsers 
in  the  order  in  which  their  names  appear  upon  the  instrument.59 

An  indorser  of  a  promissory  note,  though  in  the  nature  of  a 
surety,  is  not  entitled  for  all  purposes  to  the  privileges  of  that 
character,  as  he  is  answerable  upon  an  independent  contract,  and 
it  is  his  duty  to  take  up  a  note  when  it  is  dishonored.60  There 
is,  in  some  respects,  a  resemblance  between  an  indorser  and  a 
surety,  but  in  others  there  is  none,  as  he  does  not  in  any  case  lose 
his  character  of  indorser,  nor  can  he  be  made  liable  on  the  note 
without  proof  of  due  demand  and  notice.61 

§  17.  Notes  Payable  to  Maker. — By  the  law  merchant  a 
party  indorsing  a  note  payable  to  maker,  who  first  indorses  it, 
is  not  merely  a  surety,  but  an  indorsee,  and  entitled  to  demand 
notice.62 

The  Illinois  statute,  which  provides  that  indorsers  of  notes 
made  payable  to  bearer,  shall  be  held  as  guarantors  of  payment, 
does  not  apply  to  notes  payable  to  the  maker's  order  and  by  him 

"Diversy  v.  Moor,  22  111.  331;  Cornise  v.  Kellogg,  20  111.  11;  Yallop  v. 
Ebers,  1  Barn.  &  Ad.  703;   In  re  Babcoek,  3  Story.  309. 

"Marsh  v.  Low,  55  Ind.  271;  Fuller  v.  Leonard,  27  La.  Ann.  635;  Davis 
v.  Baker,  71  Ga.  33. 

58  McDonald  v.  Magruder,  3  Pet.  470. 

69  Ross  v.  Jones,  22  Wall.  576,  593 ;  Clark  v.  Devlin,  3  Bui.  &  P.  363. 

60  Ellsworth  v.  Brewer,  1 1  Pick.  320. 

81  Bradford  v.  Corey,  5  Barb.  462.     See  sec.  347. 

**  Field  v.  .Newspaper  Co.,  21  La.  Ann.  24;  Dubois  v.  Mason,  127  Mass.  37. 


12  SURETYSHIP  AND  GUARANTY.  (Ch.  1 

indorsed  in  blank  ;63  he  is  only  a  second  indorser,  and  parol  evi- 
dence is  not  admissible  to  show  a  different  contract.64 

§  18.  Pledging  or  Mortgaging  Property  to  Secure 
Debt  or  Another  Person. — When  a  third  person  pledges  his 
property  as  security  for  the  payment  of  a  debt  or  obligation  of 
another,  such  property  will  stand  in  the  position  of  a  surety  of 
the  debt.65  This  rule  also  applies  to  mortgages  made  by  one 
person  to  secure  the  debt  of  another.66 

§  19.  Mortgaging  of  Wife's  Separate  Property  to 
Secure  the  Debts  of  Her  Husband. — In  many  of  the  States, 
if  a  wife  mortgages  her  separate  estate  to  secure  her  husband's 
debt,  she  becomes  a  surety  only,  and  may  demand  such  rights  as 
a  surety  could  claim.67  But  the  wife's  rights  are  controlled  by 
local  statutes,  which  differ  greatly  and  must  be  consulted.  In 
some  of  the  States  she  has  the  same  rights  as  her  husband  as  to 
disposition  of  property.  She  has  the  same  rights  to  contract  as 
if  she  was  sole.68  In  other  States  she  is  prohibited  from  mort- 
gaging her  estate  to  secure  her  husband's  debt. 

§  20.  Dissolution  of  Partnership — One  or  More  Part- 
ners Assuming  Partnership  Debts. — After  dissolution  of  the 
partnership,  and  one  or  more  assume  the  payment  of  the  firm 
debts,  releasing  the  others,  they  stand  as  between  themselves, 
principal  and  surety;  the  assuming  partners  become  the  princi- 
pal and  the  retiring  partners  the  surety.69  So  when  one  partner 
retires  from  the  firm  and  those  remaining  assume  the  partner- 
ship debts,  the  retiring  partner  becomes  surety  as  between  them- 
selves, but  his  relation  to  the  partnership  creditors  is  not  changed 

"  Chicago  Trust  &  Sav.  Bank  v.  Nordgren,  157  111.  663. 
"ITately  v.  Pike.  162   111.  241. 
"Price  v.  Bank,  114  111.  317. 

"Ryan  v.  Shawneetown,   14  jli.  20;  Crawford  v.  Richpson,  101  111.  351; 
Burnap  v.  Bank,  !•">  NT.  V.  125;  Christner  v.  Brown,  16  Iowa,  130. 
"  Bank   v.    Brown,  46   N.    v.   170. 
"Worrell  v.   Forsyth,  141    ill.  22.     Nop,  also.   Bank  v.  Lumber  Co.,   100 

Tom.    179. 

"  Moore  v.  Tapliff,  107  111.  241  ;   Wandlandt  v.  Sohre,  37  Minn.  162. 


§    21)  NATURE    AND    EFFECT.  13 

without  their  consent,  and  as  to  them,  he  is  still  a  principal  with 
the  others.70 

§  21.  Partners  or  Principals  Agreeing  Among  Them- 
selves— Effect  on  Creditors'  Rights. — The  great  weight  of 
authority  is  that  two  or  more  principal  debtors  cannot,  by  agree- 
ment among  themselves,  without  consent  of  the  creditor,  so 
change  the  character  of  the  liability  of  one  of  them  to  such 
creditor,  from  principal  to  surety,  as  to  entitle  him  to  demand 
from  the  creditor  the  treatment  of  a  surety  for  the  debt.  That 
is,  a  retiring  partner  or  other  principal  debtor  cannot  become 
a  surety  as  to  the  creditor  by  simply  informing  him  that  his  co- 
debtors  have  agreed  that  he  shall  be  held  only  as  a  surety.71 

However,  there  is  a  contrary  doctrine,  which  holds  that  the 
surety  being  made  known  to  the  creditor,  imposes  upon  him  the 
obligation  to  treat  him  as  surety  from  the  time  the  information 
is  received.  Hence,  the  principal  obligors  in  a  contract  may 
by  agreement  between  themselves  change  the  obligation  of  one  or 
more  of  them  from  that  of  principal  debtor  to  that  of  surety, 
and  upon  notice  of  such  agreement  to  the  obligee,  the  same  effect 
will  be  given  as  if  the  suretyship  originated  in  the  contract 
itself.72      Such   doctrine   is   unsound,    and  makes  the  creditor 

70  Shapljegh  Hardware  Qo^  y^WejlsMK)  Tex.  110 ;  Buchanan  v.  Clark, 
10  Grat.  164;  Swire  v.  Boyers,  1  Q.  B.  Div.  536;  Hall  v.  Long,  50  Ala. 
493;  Skinner  v.  Hill,  32  Mo.  App.  409;  Whittier  v.  Gould,  8  Watts,  485; 
Shepherd  v.  May,  115  U.  S.  505;  Gillen  v.  Peters,  39  Kan.  489;  Conwell  v. 
MeCowan,  81  111.  285. 

"Story  on  Part.  158;  Bates  on  Part.  533;  Lindley  on  Part.  295;  Parson 
on  Part.  (3rd  ed.)  428;  White  v.  Boone^  71  Tex.  712;  Shepherd  v.  May, 
115  U.  S.  505;  Rawson  v.  Taylor,  30  Ohio  St.  389;  Skinner  v.  Hall,  32  Mo. 
App.  409;  First  Nat.  Bank  v.  Finck,  100  Wis.  446;  Barnes  v.  Boyers,  34 
W.  Va.  303;  Swire  v.  Redman,  1  Q.  B.  D.  536;  Hall  v.  Long,  56  Ala.  493; 
Shapleigh  Hardware  Co.  v.  Wells.  90  Tex.  110;  Keller  v.  Ashford,  133  U.  S. 
6'i'O;    Bank   v.  Kirkwood,    172    III.  563. 

"Colgrove  v.  Tallman,  67  N.  Y.  90;  Smith  v.  Sheldon.  35  Mich.  49: 
Campbell  v.  Floyd,  153  Pa.  St.  84;  Williams  v.  Boyd,  74  Ind.  286;  Gates 
v.  Hughes,  44  Wis.  332;  Overend  v.  Financial  Corp.  L.  R.,  7  H.  L.  348; 
Oakeley  v.  Parsheller,  4  CI.  &  Fr.  207:  10  Bligh,  N.  S.  548;  Maingay  v. 
Lewis,  5  Ir.  Rep.  C.  L.  229,  231;  Rouse  v.  Banking  Co.  (1894),  App. 
Cas.  586. 


14  SURETYSHIP  AND  GUARANTY.  (Ch.  1 

assent  to  a  new  contract.  And  the  chief  justice,  in  Swire  v. 
Redman,73  says  there  is  no  English  case  which  holds  the  doctrine 
that  the  agreement  between  partners  themselves.,  without  the 
consent  of  the  creditor,  can  change  their  relation  to  the  latter; 
and  that  he  has  found  no  American  case  that  upholds  such  doc- 
trine, except  those  based  upon  the  misinterpretation  of  Oakeley 
v.  Parsheller 

§22.  Joint  Contract. — Where  a  joint  contract  is  made  by 
two  or  more  parties  for  a.  joint  debt,  each  is  principal  for  his 
share  of  the  debt  and  co-surety  for  the  other  part.  Thus,  where 
a  note  is  signed  by  three  persons  as  joint  makers,  each  is  princi- 
pal for  one-third  of  the  debt  and  co-surety  for  the  other  two- 
thirds.74  In  such  case  there  exists  between  the  parties  privity 
of  contract,  which  arises  between  sureties  and  their  principals. 
Between  themselves  each  is  principal  for  the  performance  of  the 
contract  so  far  as  relates  to  himself,  and  surety  for  his  co- 
principal  that  he  will  duly  perform.75 

Where  a  joint  and  several  note  is  given  to  a  payee,  the  makers 
are  jointly  and  severally  bound  for  its  entire  amount ;  all  are 
principal  debtors.  As  between  the  makers,  each  is  principal  for 
his  share,  and  is  bound  to  pay  it,  and  surety  for  the  remainder.76 
Thus,  where  several  parties  borrow  a  sum  of  money  which  they 
share  among  themselves,  and  execute  their  joint  note  to  the 
r  the  total  amount,  as  between  themselves,  each  is  prin- 
cipal for  the  amount  he  receives,  and  surety  as  to  the  re- 
mainder.77 

§   23.   Joint   Executors   and   Administrators. — The  gen- 
oral  rule  is  that  a  co-executor  or  administrator  may  act  either 
rately  or  in  conjunction.      They  are  jointly  responsible  for 
joint   acts,  and  each  is  separately  answerable  for  his  separate 

78  1  Q.  B.  D.  530. 

"Goodall  v.  Went  worth,  20  Me.  322. 

76  Hatch  v.  Peyton,  36  Mo.  410. 

"Seitzler  v.   Miahler,  ."7   Pa.  St.  82;  Chapman  v.  Morrill,  20  Cal.  130; 
Fletcher  v.  Grover,  II  X.  II.  368;  Owen  v.  McGehee,  61  Ala.  440. 

77  Hank   v.   Close,  7(1  Tex.    )7;    Hall   v.    Hall,   34   Ind.  314. 


§    23)  NAT UK K    AM)    hl-FECT.  15 

act  and  defaults.78  In  some  States,  however,  the  rule  is  differ- 
ent, and  an  executor  or  administrator  is  liable  for  the  defaults  of 
his  co-executor  or  co-administrator.'9  But  these  cases  were 
decided  upon  questions  of  liability  outside  of  the  bond. 

rU5ruen  v.  Gillet,  115  N.  Y.  10;  Nauz  v.  Oakley,  120  N.  Y.  84;  State  v. 
\\.      <t,  (i7   Ind.  25. 

,9  brazier  v.  Clark,  5  Pick.  96;  Towne  v.  Ammidown,  20  Pick.  535;  New- 
ton v.  Newton,  53  N.  H.  537;  Ames  v.  Armstrong,  106  Mass.  15;  Boyd  v. 
Boyd,  1  Watts,  365;  Caskie  v.  Harrison,  76  Va.  85;  Jeli'ries  v.  Lawson,  30 
Miss.  791;  Babcock  v.  Hubbard,  2  Conn.  536. 


16  SURETYSHIP    AA'U    uLAKA.Mi.  ^Ck.  2 


CHAPTER  II. 

THE    PASTIES. 

Sec.  2-i.  Ixfaxts. — An  infant's  liability  as  surety  does  not 
differ  from  bis  otber  business  contracts.  So  a  contract  of  a 
minor  as  surety  is  not  necessarily  void,  but  voidable,  and  be  may 
affirm  tbe  contract  upon  reaching  his  majority.1  This  is  th6 
general  rule,  though  the  United  States  Supreme  Court  has  lately 
decided  that  an  infant's  contract  is  voidable  only,  unless  it 
appears  upon  its  face  to  be  to  his  prejudice,  in  which  case  it  may 
be  void.2  But  the  decision  on  that  point  was  not  necessary  and 
must  be  considered  a  dictum. 

A  contract  of  surety  by  an  infant  is  voidable  only,  and  rtiay 
be  affirmed  by  him  when  he  arrives  at  his  legal  majority,  and 
then  if  affirmed  it  may  be  enforced.3 

>  25.  Ensaite  Persons. — The  general  doctrine  is  that  con- 
tracts of  insane  persons  are  not  binding  in  law  or  equity.4  But 
to  this  there  should  be  a  qualification :  A  contract  made  by  an 
insane  person  before  he  is  adjudged  insane  is  not  void,  but  void- 
able only.5 

In  Iowa  it  is  held  that  a  person  of  unsound  mind  who  becomes 
surety  on  a  note  for  an  antecedent  debt,  is  not  liable  thereon, 
even  though  the  person  taking  the  note  had  no  knowledge  that 
the  surety's  mind  was  unsound.6 

'Owen  v.  Long.  112  Mass.  403. 

:  MacGreal  v.  Taylor.  167  U.  B.  CSS. 

1  Fetrow  v.  Wiseman.  40  Ind.   14S:   Hinely  v.  Magoritz.   3  Pu.   St.   128; 
Patchin   v.   Cromaeh,    13  Vt.   330:    Reed   v.   Lane,   til    Vt.   481:    Horner   v. 
Dipple,  31  Ohic  St.  72.     See.  also.  Keil  v.  Healey.  S4  111.  104:  Cole  v.  Pen- 
noyor,  14  111.   158:   Fonda  v.  Van  Home.   15  Wend.  631. 
'  .   Phelps,   1 1    Pick.  304. 

'  Burnham  v.  Kidwell.  113  111.  425:  Somers  v.  Pumphrey,  24  Ind.  231; 
Inirraham  v.  Baldwin,  9  N.  Y.  45. 

'  \  an  Patton  v    Deals,  '<<'■  Iowa.  62. 


§    26,  27)  THE    PARTIES.  17 

The  same  rules  apply  to  a  surety  who  is  insane  as  to  his  other 
contracts. 

§  26.  Partnership. — The  law  is  well  settled  that  a  partner 
has  no  authority  by  virtue  of  the  partnership  relation  to  sign 
the  firm's  name  for  any  purpose  not  embraced  in  the  partnership 
business ;  so  he  cannot,  without  express  authority  from  his  firm, 
bind  it  as  guarantor  or  surety,  if  such  transaction  is  not  within 
the  course  of  partnership  dealings.7 

But  when  one  partner  has  signed  the  firm  name  as  surety 
without  authority,  this  liability  may  be  ratified  by  the  firm  there- 
by making  it  valid.8 

§  27.  Attorneys-at-Law — Surety  for  Their  Clients — 
Statutory  Prohibition. — In  many  of  the  States  it  is  de- 
clared by  statute  that  an  attorney-at-law  shall  not  become  surety 
for  his  client,  but  if  he  does  become  surety,  he  will  be  liable.9 
So  if  a  judge  become  surety  on  an  official  bond,  which  action  is 
contrary  to  statute,  yet  he  will  be  bound,  as  such  statutes  are 
only  directory.10 

In  Wisconsin  an  attorney  does  not  become  liable  when  he 
becomes  surety  for  his  client,  contrary  to  statute.11  In  the 
absence  of  statutory  provisions  an  attorney  may  legally  become 
a  surety  for  his  client.12 

The  rule  of  court  prohibiting  attorneys  from  being  sureties 

'Davis  v.  Blackweli,  5  111.  App.  32;  Marsh  v.  Bank,  2  111.  App.  217; 
Brettel  v.  Williams,  4  Exch.  623 ;  Sweetzer  v.  French,  2  Cush.  309 ;  Osborne 
v.  Stone,  30  Minn.  25;  Avery  v.  Rowell,  59  Wis.  82;  McQuewans  v.  Hamlin, 
35  Pa.  St.  517. 

8  Crawford  v.  Stirling  4  Esp.  207. 

•Gilbank  v.  Stephenson,  30  Wis.  155;  Towle  v.  Bradley,  2  S.  Dak.  472; 
Cuppy  v.  Coffman,  82  Iowa,  214;  Wright  v.  Schmidt,  47  Iowa,  233.  See, 
also,  Jack  v.  People,  19  111.  57. 

10  State  v.  Howell  County,  101  Mo.  368 ;  Wallace  v.  Scoles,  6  Ohio,  429 ; 
Sherman  v.  State,  4  Kan.  570 ;  Tessier,  v.  Crowley,  17  Neb.  207 ;  Hicks  v. 
Chouteau,  12  Mo.  341;  Ohio,  etc.,  K.  K.  Co.  v.  Hardy,  64  Ind.  454;  Harper 
v.  Tahourdin,  6  M.  and  Sel.  383. 

"Cothren  v.  Connaughton,  24  Wis.  134;  Gilback  v.  Stephenson,  30  Wis. 
155.     See,  also,  Fond  du  Lac  v.  Moore,  58  Wis.  170. 

"Walker  v.  Holmes,  22  Wend.  614;  Abbott  v.  Zeierler,  9  Ind.  511. 

7 


18  SURETYSHIP    AND    GUARANTY.  (Ch.  $5 

for  their  clients  in  a  legal  proceeding  extends  only  to  bail  for  the 
appearance  of  the  parties  arrested,  and  does  not  apply  to  their 
being  surety  for  costs.13  If  the  attorney  becomes  surety  in  vio- 
lation of  the  statute  or  rule  of  court,  it  does  not  relieve  him  of 
liability  as  a  surety,  because  he  cannot  take  advantage  of  his 
own  wrong  when  sued  upon  the  undertaking.14  But  the  pro- 
ceedings may  be  dismissed  when  the  statute  or  rule  of  court  has 
been  violated,15  or  the  court  may  hold  the  attorney  in  contempt 
of  court  when  in  opposition  to  rule  ;16  or  the  court  may  allow  the 
bond  to  be  amended  and  made  sufficient.17 

§  28.  Corporations. — The  general,  rule  is  that  a  corporation 
has  those  rights  to  contract  which  are  given  it  by  its  charter, 
or  act  of  creation.  A  private  corporation  may  borrow  money, 
and  become  a  party  to  negotiable  paper  in  the  transaction  of  its 
legitimate  business,  unless  expressly  prohibited ;  and  until  the 
contrary  is  shown,  the  legal  presumption  is  that  its  acts  in  that 
behalf  are  done  in  the  regular  course  of  its  business.18  So  a  rail- 
road corporation  is  responsible  in  its  corporate  capacity  for  acts 
done  by  its  agent,  either  ex  contractu  or  ex  delicto,  in  the  course 
of  its  business  and  within  the  scope  of  the  agent's  authority.19 
Corporations,  as  much  as  individuals,  are  bound  to  act  in  good 
faith  and  fair  dealing,  and  the  rule  is  well  settled  that  they 
cannot,  by  acts,  representations  or  silence,  involve  others  in 
onerous  engagements  and  then  turn  round  and  disavow  their 
acts  and  defeat  just  obligations  which  their  own  conduct  has 

18  Jones  v.  Savage,  10  Daly,  621 ;  Sigourney  v.  Waddle,  9  Paige,  381;  Cos- 
ter v.  Watson,  15  Johns.  535.       See,  also,  Stark  v.  Small,  72  Wis.  215. 

14  Jack  v.  People,  19  111.  57;  Tessier  v.  Crowley,  17  Neb.  207;  Ohio,  etc., 
R.  P>.  Co.  v.  Hardy,  64  Ind.  454;  Wright  v.  Schmidt,  47  Iowa,  233;  Cook 
v.  f, noway,  29  Kan.  41  ;  Morrill  v.  Lamson,  138  Mass.  115;  Holandworth 
v.  Commonwealth,  11  Bush,  617;  Wallace  v.  Scoles,  6  Ohio,  429;  Fond  du 
Lac  v.  Moore,  58  Wis.  170. 

"Gilbank  v.  Stephenson,  30  Wis.  155;  Massie  v.  Mann,  17  Iowa,  131; 
I.'    e  V.  Sliiil'elin,  7  Fla.  40. 

"Abbott  v.  Zeigler,  9  Ind.  511;  Ohio,  etc.,  R.  R.  Co.  v.  Hardy,  6  Ohio, 
455. 

"Branger  v.    Buttrick,  30  Wis.  153. 

'•Canal  Co.  v.  Vallette,  til  How.  424 ;  Farnum  v.  Blackston,  1  Sumner,  46. 

"Railroad  Co.  v.  Quigley,  21  How.  202. 


§    29)  THE    PARTIES.  19 

superinduced.20  So  when  a  State  gives  a  railroad  corporation 
power  to  guarantee  bonds  issued  by  towns  and  cities  along  the 
line  for  the  benefit  of  the  road,  such  guaranty  is  valid.21  But 
unless  the  corporation  has  legal  authority  to  guarantee  su<  !i 
bonds,  or  to  guarantee  future  dividends,  such  action  by  the  cor- 
poration will  be  ultra  vires,  and  is  invalid.22 

Ordinarily  the  simple  act  of  becoming  a  surety  or  guarantor 
for  the  contract  debt  of  a  person  or  corporation  is  not  within  the 
implied  powers  of  a  corporation.23 

§  29.  National  Banks. — National  banks  possess  only  such 
powers  as  are  expressly  conferred  upon  them  by  the  act  of 
Congress  under  which  they  are  organized,  and  no  power  is  given 
them  to  enter  into  contracts  of  surety  in  which  they  have  no 
interest.24  Thus,  a  national  bank  has  no  legal  power  to  guaran- 
tee a  contract  between  third  persons  for  the  delivery  of  building 
material.25  But  when  it  is  in  the  course  of  its  ordinary  busi- 
ness, it  may  guarantee  payment  of  a  note  which  it  indorses  for 
the  purpose  of  transfer.20  But  a  bank  cannot  as  such  become  a 
surety  upon  a  bond,  and  cannot  have  any  understanding  or  make 
a  contract  except  as  its  proper  officers  shall  make  the  promise  in 
the  line  of  its  powers ;  hence,  sureties  upon  a  public  officer's  bond 
executed  in  pursuance  of  an  understanding  that  public  funds 

20  Bargate  v.  Shortridge,  5  H.  L.  Cas.  297;  Zabriskie  v.  Railroad  Co., 
23  How.  397. 

!1  Railroad  Co.  v.  Howard,  7  Wall .  392. 

"Elevator  Co.  v.  Railroad  Co.,  85  Tenn.  703. 

23  Pennsylvania,  etc.,  R.  R.  Co.  v.  Railroad  Co.,  IIS  U.  S.  290;  Twiss  v. 
Association,  87  Iowa,  733;  Knickerbocker  v.  Wilcox.  83  Mich.  200;  Colmam 
v.  Railroad  Co.,  10  Beav.  1:  Culver  v.  Real  Estate  Co.,  91  Pa.  St.  37G; 
Madison,  etc..  Plank-road  Co.  v.  Plank-road  Co.,  7  Wis.  59;  Northsicle^Rj^JB*, 
Co.  v.  Worthington,  88  Tex.  5(12:  Filon  v.  Brewing  Co.,  38  X.  Y.  St.  Rep. 
602;  15  N.  Y.  Supp.  57;  Norton  v.  Bank,  01  N.  H.  589:  Aetna  Xat.  Bank 
v.  Ins.  Co.,  50  Conn.  107;  Louisville,  etc..  R.  R.  Co.  v.  Imp.  R.  R.  Co., 
69  Fed.  Rep.  433;  Best  Brewing  o.  v.  Klassen,  185  111.  37;  Lucas  v. 
Transfer  Co.,  70  Iowa,  541. 

"Bullard  v.  Bank,  IS  Wall.  589;  Matthews  v.  Skinker,  02  Mo.  329; 
Wiley  v.  Bank,  47  Vt.  546 ;  Bank  v.  Hoeh,  89  Pa.  St.  324 ;  Knickerbocker  v. 
Wilcox,  83  Mich.  200. 

i8  Norton  v.  Bank,  51  N.  H.  589. 

:o  People's  Bank  v.  Bank,  101  U.   S.    181. 


20  SURETYSHIP  AND  GUARANTY.  (Ch.  2 

would  be  deposited  in  the  bank  represented  by  them  and  interest 
be  paid  thereon  to  the  officer,  are  parties  to  such  illegal  arrange- 
ment, which  cannot  be  treated  as  having  been  made  with  the 
bank  as  a  corporate  entity,  so  as  to  leave  the  sureties  untainted 
with  the  transaction,  and  its  illegality  will  prevent  them  from 
enforcing  under  such  contract  indemnity  against  the  defaulting 
principal.2" 

§  30.  Ultba  Viees  Coxtbacts. — Executory  contracts  01  cor- 
porations to  act  as  sureties  are  void.28  But  some  decisions  hold 
that  a  corporation  may  become  a  surety  and  the  contract  en- 
forced if  it  results  in  increasing  the  trade  or  business  of  the  cor- 
poration, and  is  incident  to  the  scope  of  its  business.29  Thus,  a 
brewery  company  may  guarantee  the  payment  of  rent  of  a  hotel, 
the  bar  fixtures  and  furniture  of  which  it  owns,  and  in  which  its 
beer  is  to  be  sold  to  the  trade.30  And  so  a  lumber  company  may 
become  surety  for  a  contractor  who  agrees  to  buy  his  lumber 
from  it.31  And  it  is  held  that  an  executed  contract  cannot  be 
avoided  for  ultra  vires  when  the  corporation  has  received  the 
benefits  of  the  contract.  So  after  the  contract  is  executed  the 
corporation  cannot  allege  its  suretyship  as  an  ultra,  vires  con- 
tract and.  therefore,  void.32 

However,  this  general  rule  has  qualifications.  A  contract  of 
a  corporation  which  is  ultra  vires  in  the  proper  sense,  that  is, 
outside  of  the  object  of  its  creation  as  defined  in  the  law  of  its 
organization,  and  therefore  beyond  the  powers  conferred  upon  it 
by  the  legislature,  is  not  voidable  only,  but  wholly  void  and  of 
no  legal  effect.  Because  the  objection  to  the  contract  is  not 
merely  that  the  corporation  ought  not  to  have  made  it,   but 

"Ramsay  v.   Whitbeck.   183   111.   550. 

"First  Nat.  Bank  v.  Winchester.  119  Ala.  168:  Twiss  v.  Life  Association, 
87  Iowa.  733;  Culver  v.  Real  Estate  Co.,  91  Pa.  St.  367;  Hardaway  v. 
Hyn-nn.  S9  Md.  305. 

*•  Heim's  Brewing  Co.  v.  Flannery,  137  111.  309;  Standard  Brewery  Co. 
T.  Kelly,  66  III.  App.  267;  Field  v.  Burr  Brewing  Co.,  18  X.  Y.  Supp.  456. 

»  Winterfield  v.  Brewing  Co..  96  Wis.  239. 

"Wittmer  v.  Lumber  Co.    (In.l.i.  55  N.  E.  Rep.   868. 

"  Kadish  v.  Build.  Asso.,  151  111.  531;  Arkansas  Valley,  etc.,  Co.  v.  Lin- 
coln, 56  Kan.  145;  Wittmer  v.  Lumber  Co.   (Ind.),  55  N.  E.  Rep.  868. 


§    31,  32)  THE    PARTIES.  21 

that  it  could  not  make  it.  Such  contract  cannot  be  ratified  by 
either  party  because  it  could  not  have  been  authorized  by  either. 
No  performance  on  either  side  can  give  the  said  contract  any 
validity  or  be  the  foundation  of  any  right  of  action  upon  it. 
When  a  corporation  is  acting  within  the  general  scope  of  its 
powers  conferred  upon  it  by  the  legislature,  the  corporation,  as 
well  as  persons  contracting  with  it,  may  be  estopped  to  deny 
that  it  has  complied  with  the  legal  formalities  which  are  requis- 
ites to  its  existence  or  to  its  action,  because  such  requisites  might 
in  fact  have  been  complied  with.  But  when  the  contract  is 
beyond  the  power  conferred  upon  it  by  existing  laws,  neither  the 
corporation  nor  the  other  party  to  the  contract  can  be  estopped 
by  assenting  to  it  or  by  acting  upon  it,  to  show  that  it  was  pro- 
hibited by  those  laws,  for  the  contract  is  void.33  And  the  party 
receiving  the  benefits  may  be  compelled  to  restore  what  he  ha& 
received  or  pay  a  compensation  on  implied  contract,  and  not  on 
the  original  contract,  which  is  void  absolutely.34 

§  31.  Implied  Power  to  Become  Surety. — A  power  will 
be  implied  that  a  corporation  may  become  surety  whenever  rea- 
sonably necessary  or  is  usual  in  the  conduct  of  its  business,  or 
reasonably  necessary  or  proper  in  order  to  accomplish  any  par- 
ticular power  expressly  conferred.35  Thus,  a  national  bank 
may  give  a  guaranty  for  the  payment  of  a  note  which  it  indorses 
in  order  to  transfer  the  same  to  other  parties,  as  such  action  is 
incidental  to  the  exercise  of  its  power  to  buy  and  sell  commercial 
paper.36 

§  32.  Principal  Under  Duress. — If  the  principal  is  under 
duress  at  the  time  of  making  a  contract,  it  may  be  avoided  by 

"Davis  v.  Railroad  Co.,  131  Mass.  258;  Central  Trans.  Co.  v.  Car  Co., 
139  U.  S.  24;  Durkel  v.  People,  155  111.  354;  Best  Brewing  Co.  v.  Klasson, 
185  111.  37;  National  Home  Build.  Asso.  v.  Bank.  181  111.  35;  Marble  v. 
Harvey,  92  Tenn.  115. 

34  Salt  Lake  City  v.   Hollister.  118  U.   S.   256.  263. 

"Green  Bay.  etc..  R.  R.  Co.  v.  Steamboat  Co.,  107  U.  S.  98;  Arnot  v. 
Railroad  Co.,  67  N.  Y.  315:  Heim's  Brewing  Co.  v.  Flannery,  137  III.  309; 
Smead  v.  Railroad  Co..  11  Ind.  104. 

»6  Thomas  v.  Bank,  40  Neb.  501;  People's  Bank  v.  Bank,  101  U.  S.  181. 


22  SURETYSHIP  AND  GUARANTY.  (Cll.  2 

Lim.  And  if  the  contract  of  suretyship  is  executed  by  the  surety 
under  duress  he  will  not  be  bound.37  But  the  general  rule  is 
that  the  surety  cannot  set  up  the  duress  of  his  principal  to 
relieve  him  from  liability  as  surety  when  he  signed  with  full 
knowledge  of  the  duress.38  Because  duress  which  will  avoid 
a  contract  must  be  pleaded  by  the  party  who  acted  under  it  in 
making  the  contract.39  But  there  are  decisions  to  the  contrary 
which  hold  that  a  surety  may  avoid  the  contract  on  account  of 
the  duress  of  the  principal.40 

In  one  case  the  defense  of  duress  in  the  execution  of  a  note 
was  allowed  to  the  surety  because  he  was  the  father  of  the 
principal.41 

Where  the  surety  is  ignorant  of  the  duress  of  the  principal  he 
will  not  be  liable,  because  then  he  becomes  surety  on  a  contract 
which  was  not  in  contemplation  at  the  time  of  its  execution.42 
But  where  he  has  full  knowledge  of  the  facts,  duress  of  the 
principal  does  not  release  him  from  liability.43 

§  33.  Non-residents. — Where  the  statute  provides  that  sure^ 
ties  shall  be  residents  of  the  State  or  county  where  the  contract 
is  executed,  the  statute  is  directory,  and  the  non-resident  surety 
will  be  held  responsible,  and  he  cannot  set  up  his  foreign  domicil 
to  release  him  of  liability.44 

§  34.  Surety  and  Guaranty  Companies. — At  the  present 
time  many  States  have  enacted  laws  for  the  organization  of 
surety  and  guaranty  corporations,  which  can  become  surety,  and 

57  Small  v.  Currie,  2  Drew.  102:  Ingersoll  v.  Roe,  65  Barb.  346. 

'"Plummer  v.  People,  16  111.  358;  Peacock  v.  People,  83  111.  331;  Tucker 
v.  State,  72  Ind.  242;   Haney  v.  People,  12  Colo.  345. 

8»  Robinson  v.  Gould,  11   Cush.  55,  57. 

"Wilkinson  v.  Herd.  65  Mo.  App.  401;  State  v.  Brantley,  27  Ala.  44; 
Eawea  v.  Marchant,  I  Curt.  136;  Owens  v.  Mynatt,  1  Heisk.  675. 

'  Osborn  v.  Robbins,  36  N.  Y.  365.  Compare  Strong  v.  Grannis,  26  Barb. 
122:  Gibson  v.  Patterson.  75  Ga.  540. 

•Grabam  v.  Marks.  OS  Ga.  67:  Griffith  v.  Sitgreaves,  00  Pa.  St.  161; 
Hazard    v.   T.riswold.  21    Fed.    Hep.    17S. 

••Plummer  v.  IVordc.  in  111.  358;  Tin-key  v.  State.  72  Tnd.  242. 

«•  State  v.  Flinn.  77  Ala.  100:  School  Directors  v.  Brown.  33  La.  Ann.  383. 


§    34)  THE    PASTIES.  23 

such  corporations  are  constitutional.45  Such  corporations  may 
be  accepted  as  sole  surety,46  and  the  grant  of  such  power  to  a  cor- 
poration to  become  the  sole  surety,  in  no  manner  interferes  with 
the  general  law  in  regard  to  personal  security.47 

45  Cramer  v.  Tittle,  72  Cal.  12 ;  Gans  v.  Carter,  77  Md.  1 ;  Steele  v.  Audi- 
tor General,   111   Mich.  381. 
"Cramer  v.  Tittle,  72  Cal.  12. 
17  County  Commissioners  v.  Hellen,  72  Md.  603. 


24  SUKETYSHIP  AND  QUAKANTY.  (Ch.  3 

CHAPTER  III. 

EXECUTION  OF  THE  CONTEAOTo 

Sec.  35.  Consideration. — A  contract  of  surety  differs  Id 
;iio  respect  from  other  contracts,  and  must  be  supported  by  a 
sufficient  consideration.1  The  consideration  may  be  some  benefit 
or  advantage  to  the  principal  or  surety  or  some  disadvantage, 
What  is  a  sufficient  consideration  to  support  a  promise  of  the 
principal  will  sustain  the  concurrent  promise  of  the  surety."' 
So  an  extension  of  the  time  of  payment  is  a  sufficient  considera- 
tion for  the  promise  of  a  third  party,  as  surety,  to  pay  the  debt.' 
And  if  the  surety  agreed  to  such  extension  he  is  bound,  and  hie 
consent  may  be  implied.4  After  the  surety  is  released,  he  may, 
without  any  new  consideration,  revive  his  liability  by  a  new  and 
distinct  promise  if  not  contrary  to  statute  ;5  and  especially  so  if 
the  new  promise  be  in  writing.6 

If  the  contract  is  void  the  surety  is  not  liable.  Thus,  where 
a  corporation  becomes  a  surety,  Avhich  is  ultra  vires  and  void,  il 
cannot  be  held  liable,  and  if  it  had  given  a  mortgage  the  land 
iioes  not  pass,  but  the  title  still  remains  in  the  corporation.7 

As  between  the  sureties  and  the  principal,  the  consideration 
v/hich  supports  the  undertaking  of  the  sureties  is  the  implied 
oromise  of  the  principal  to  indemnify  them  for  becoming  parties 
*o  the  obligation.8 

-Biggs  v.  Latham,  36  Kan.  205;  Post  v.  Losey,  111  Intl.  74. 

aPritchett  v.  People,  1  Gil.  (111.)  525;  United  States  v.  Linn.  «5  B& 
'/90;  Leonard  v.  Vredenbnrg,  8  Johns.  29. 

a  Hooper  v.  Pike,  70  Minn.  84. 

•Bank  v.  Whitman,  06  111.  331;  Clark  v.  Devlin,  3  Bos.  &  Pui.  ooi> 

'Hooper  v.  Pike,  70  Minn.  84;  Bank  v.  Whitman,  66  111.  331. 

e  Smith  v.  Winter,  4  Mees.  &  W.  454;  Stevens  v.  Lynch.  12  EasV  *ffg 
Fowler  v.  Brooks,  13  N.  H.  240;  Brnmhle  v.  Wnrd,  40  Ohio  St.  26?  „ 

»Pirit  Nat.  Bank  v.  Winchester.  110  Ala.   168. 

•Applcton  v.  Baacom,  3  Met.  169:  Martin  v.  TCIIerbe,  70  Ala.  326;  MiMei- 
\.  Stout.  6  Del.  Ch.  263:  Howe  v.  Ward,  4  Me.  195;  Thompson  V.  Thompson, 
19  Me.  244  :  Morrow  v.  Morrow,  2  Tenn.  Ch.  555. 


§  36,  37)       EXECUTION  OF  THE  CONTRACT.  25 

§  36.  Indorsing  Note  Before  and  After  Execution. — A 
guarantor  or  surety  indorsing  a  note  before  its  delivery  to  the 
payee,  needs  no  new  consideration  to  support  such  suretyship, 
because  his  and  the  principal's  contract  were  concurrent  and 
simultaneous.9  Such  indorsement  becomes  and  is  a  part  of  the 
original  contract,  and  therefore  needs  no  new  consideration.10 

If  the  undertaking  of  suretyship  is  entered  into  at  a  time 
subsequent  to  the  execution  by  the  principal,  it  is  a  distinct  con- 
tract and  must  be  supported  by  a  consideration  of  its  own.11  So 
where  a  surety  signs  a  note  as  surety,  after  its  delivery  to  the 
payee,  the  transaction  must  be  supported  by  a  new  consideration 
in  order  to  hold  the  surety.12  Thus,  where  a  note  has  been  exe- 
cuted by  the  principal,  a  party  signing  it  as  surety  at  a  time 
subsequent  to  the  incurring  of  the  obligation,  without  any  new 
or  distinct  consideration  passing  to  the  surety,  is  not  bound.13 

§  37.  Surrender  of  Old  Note  for  New  Note. — A  surren- 
der of  the  old  promissory  note  is  a  sufficient  consideration  for  a 
new  one  executed  by  the  surety  and  principal,  although  the 
surety  had  been  released  from  payment  of  the  old  note  by  the 
action  of  the  principal.14  So  giving  up  a  note  against  a  third 
person,  is  a  sufficient  consideration  for  a  promise  to  pay  the 
amount  of  it.15  And  where  both  principal  and  surety  are  ignor- 
ant of  the  law,  in  good  faith,  supposed  the  surety  was  liable  for 
the  old  note,  the  surety  is  liable  on  the  new  note,  though  he  hac 
been  discharged  on  the  old  note.16 

"Dillman  v.  Nadelhoffer,  160  111.  121.     See  sec.  347. 

19  Joslyn  v.  Collinson,  26  111.  61;  Favorite  v.  Stidham,  84  Ind.  423; 
Bridges  v.  Blake,  106  Ind.  332;  Green  v.  Shepherd,  5  Allen,  589:  Briggs 
v.  Downing,  48  Iowa,  550;  Barnes  v.  Van  Keuren,  31  Neb.  165;  Brownlee  v. 
Lowe,  117  Ind.  420. 

11  Bebee  v.  Moore,  3  McLean,  387. 

"Clofton  v.  Hall,  51  Miss.  482;  Savage  v.  Bank,  112  Ala.  508;  Joslyn  v. 
Collinson,  26  111.  61. 

"Whipperman  v.  Hardy,  17  Ind.  App.  142;  Joslyn  v.  Collinson,  26  111. 
61;  Lowenstein  v.  Sorge,  75  Mo.  App.  281.     See  sec.  347. 

"Stevens  v.  Lynch,  12  East,  38. 

1BShortredge  v.  Cheek,  1  A.  &  E.  57 ;  Brewster  v.  Baker,  97  Ind.  260; 
Erie  County  Sav.  Bank  v.  Coit,  104  N.  Y.  532. 

18  Churchill  v.  Bradley,  58  Vt.  403 .  This  is  on  the  principle  that  ignor- 
ance of  the  law  excuses  no  one. 


26  SURETYSHIP  AND  GUARANTY.  (Ch.  3 

§  38.  The  Consideration  Must  be  Legal. — The  considera- 
tion must  be  legal  and,  of  course,  not  opposed  to  public  policy. 
Thus,  a  note  signed  by  one  as  surety  upon  the  promise  that  the 
maker  thereof  would  not  be  prosecuted  for  embezzlement,  being 
based  upon  an  illegal  consideration,  is  void.17  But  if  the  prin- 
cipal's debt  is  based  upon  an  illegal  consideration,  the  delivery  of 
the  money  due  upon  the  contract,  to  the  surety  to  be  paid  to  the 
payee,  and  he  agrees  thus  to  pay  the  note  upon  which  he  is  surety 
— make  the  surety  liable  to  pay  the  money  as  agreed,  though 
the  original  contract  was  illegal.18 

§  39.  Concurrent  Contracts. — In  order  to  bind  the  surety, 
the  general  rule  is  that  his  contract  must  be  concurrent  with  the 
principal's.  So  when  the  surety's  contract  is  contemporaneous 
with  the  principal  contract,  it  is  not  necessary  that  there  should 
be  a  separate  and  distinct  consideration  from  that  upon  which 
the  bill  or  promissory  note  was  executed.19  And  if  the  consider- 
ation is  sufficient  to  support  the  principal  contract,  it  will  be 
sufficient  to  support  the  contract  of  suretyship.20 

So  if  a  party  signs  as  a  guarantor  or  surety,  a  note  before  its 
delivery  to  the  payee,  the  consideration  of  the  note  will  be  pre- 
sumed to  be  the  consideration  of  the  suretyship.21 

The  question  of  consideration  in  cases  of  suretyship  may  be 
divided  into  four  classes:  (1)  Cases  in  which  the  promise  of 
the  surety  is  collateral  to  the  principal. contract,  but  is  made  at 
the  same  time  and  becomes  an  essential  ground  of  the  surety- 
ship given  to  the  principal  debtor.  Hence,  there  is  no  need  of 
any  other  consideration  to  support  the  contract  of  suretyship.22 
(2)  Cases  in  which  collateral  undertaking  is  subsequent  to  the 

17  Rouse  v.  Mohr,  29  111.  App.  321;  Gorham  v.  Keyes,  137  Mass.  583; 
Board  v.  Thompson,  33  Ohio  St.  321. 

"Barker  v.  Parker,  23  Ark.  390.  See  Farmer  v.  Russell,  1  Bos.  &  Pul. 
296;  Armstrong  v.  Toler,  11  Wheat.  258. 

"Bickford  v.  Gibbs,  8  Cush.  154;  Hughes  v.  Littlefield,  18  Me.  400; 
McNaught  v.  McClaughry,  42  N.  Y.  22;  Swift  v.  Tyson,  16  Pet.  1. 

M  Savage  v.  Fox,  00  N.  H.  17. 

21  Parkhnrst,  v.  Vail,  73  111.  343;  Dillman  v.  Nadelhoffer,  160  111.  121; 
Moil's  v.   Bird,   11    Mass.  436. 

•   Bickford  v.  Gibbs,  8  Cuah.  1">4;  Dillman  v.  Nadelhoffer,  160  111.  121. 


§  40)  EXECUTION  OF  THE  CONTRACT.  27 

creation  of  the  debt  and  is  not  an  inducement  to  it,  though  the 
subsisting  liability  is  the  ground  of  the  promise,  without  a  dis- 
tinct or  unconnected  inducement  ;  therefore  there  must  be  a  fur- 
ther consideration,  having  an  immediate  respect  to  such  liability 
for  the  consideration  of  the  original  debt  will  not  attach  to  this 
subsequent  promise.23  (3)  Cases  where  the  promise  to  pay  a 
debt  of  another  arises  out  of  a  new  and  original  consideration,  of 
benefit  or  harm  moving  between  the  contracting  parties  ;  so  when 
the  surety  subsequently  signs  the  instrument  after  delivery,  he 
will  be  bound  if  he  receives  a  new  and  sufficient,  consideration 
for  his  act.24  (4)  Cases  where  the  surety's  promise  is  the  induce- 
ment of  completing  the  contract,  though  he  signs  subsequently 
to  the  execution.25 

These  four  classes  of  cases  cover  the  law  with  respect  to  a 
surety's  liability. 

§  40.  Surety's  Promise  Being  the  Inducement. — A  moral 
obligation  is  not  sufficient  to  support  a  contract  of  suretyship ; 
but  when  the  contract  has  been  entered  into  at  the  request  of  the 
surety,  the  consideration  of  his  promise,  though  passed  or  exe- 
cuted, will  bo  continuing  and  valuable,  and  when  he  signs,  as 
surety,  the  contract,  it  is  a  complete  and  full  execution  of  the 
promise  upon  that  consideration.  Because  the  signature  con- 
nected with  the  original  contract  constitutes  one  entire  contract, 
and  the  surety  is  bound.26 

A  consideration  which  is  executed  is  not  sufficient  to  support 
a  subsequent  promise,  unless  the  act  was  done  at  the  request  of 
the  party  promising,  for  then  the  promise  is  not  a  naked  one, 
but  couples  itself  with  the  precedent  request,  and  is  therefore 
founded  on  a  sufficient  consideration.  The  general  rule  is  that 
a  passed  or  executed  consideration  is  not  sufficient  to  sustain  a 
promise  founded  upon  it,  unless  the  consideration,  though  passed, 

"Parkhurst  v.  Vail,  73  HI.  343;  7ish  v.  Hutchinson,  2  Wils.  94;  Charter 
V.  Beckett,  7  Term  R.  201 ;  Wain  v.  Walters,  5  East,  10. 
14  Leonard  v.  Vredenbertfh.  8  Johns.  29. 

*  Jackson  v.  Jackson.  7  Ala.  791  ;  Russell  v.  Mosley.  3  Brod.  &  B.  211. 
"Paul  v.  Stackhouse,  38  Pa.  St.  302;  Lackey  v.  Boruff,  152  Ind.  371. 


28  Sl'KETYSHIP    AND    GUARANTY.  (Ch.  3 

was  done  or  performed  at  the  request  of  the  party  promising. 
Without  such  previous  request,  a  subsequent  promise  has  no  legal 
validity  •  because  the  consideration  being  entirely  completed  and 
exhausted,  it  cannot  be  said  that  it  would  not  have  been  made  or 
given  but  for  the  promise  which  is  subsequent  and  independent. 
But  where  the  consideration  and  the  promise  founded  upon  it, 
are  simultaneous,  and  the  whole  agreement  is  completed  at  once ; 
and  where  the  consideration  is  to  do  a  thing  in  the  future,  the 
promise  rests  on  a  sufficient  foundation,  and  it  binds  the  party 
who  makes  it.-7  Thus,  if  one  loans  money  to  another,  and  at  a 
subsequent  time  a  third  party  who  did  not  request  the  loan,  and 
is  not  benefited  by  it,  promises  to  see  that  it  is  paid,  his  promise 
is  void  because  no  consideration  passes  from  the  promisee  to  him. 
But  if  the  promisor  requests  the  loan,  or  if  his  promise  is  made 
previous  to  the  loan,  or  at  the  same  time,  then  it  will  be  supposed 
that  the  loan  is  made  because  of  the  promise,  which  is  a  suffi- 
cient consideration  to  bind  the  third  party  or  surety.28  The  con- 
sideration must  be  at  the  time  the  promise  is-made,  either  wholly 
or  in  part  executory,  in  order  to  bind  the  third  party  who  agrees 
to  pay  the  debt.29 

§  41.  Executed  Contract. — Where  the  consideration  is 
wholly  executed  and  no  part  of  it  is  executory,  and  runs  only  to 
the  principal,  a  subsequent  promise  by  a  third  party  is  void.  ^ 
Hence,  where  a  note  has  already  been  executed  and  delivered,  and 
then  a  third  party  signs  as  surety,  there  must  be  a  new  considera- 
tion to  sustain  the  surety's  promise.  If  there  be  no  new  con- 
sideration in  such  case  the  surety  will  not  be  liable.31  So  where 
a  collateral  undertaking  of  a  guarantor  or  surety  is  subsequent 

"Williams  v.  Perkins.  21   Ark.   18. 

3  Jackson  v.  Jackson.  7  Ala.  791:  Payne  v.  Wilson.  1  Man.  &  By.  70S: 
Bailey  v.  Croft.  4  Taunt.  611:  Morley  v.  Boothby,  10  J.  B.  Moore,  395; 
Bnaeel]  v.  Moeley,  3  Brod.  &  B.  211.  , 

"Bank  v.  Coster,  3  X.  Y.  202. 

"Coffin  v.  University.  92  Ind.  337;  Wells  v.  Ross.  77  Ind.  1:  Underwood 
t.  Hossark.  38  Til.  208. 

■  Thorrnvon  v.  Gray.  63  Me.  228 :  Lee  v.  Wisner.  38  Mich,  82 ;  Fuller  r. 
bcott.  8  Kan.  25. 


§  42,43)       EXECUTION  OF  THE  CONTRACT.  29 

to  the  creation  of  the  debt,  and  is  not  the  inducement  leading  to 
the  formation  of  the  contract,  although  the  consideration  need 
not  be  expressed  in  writing,  yet  there  must  be  some  consideration 
shown  having  an  immediate  respect  to  such  liability,32  for  such 
subsequent  surety  or  guaranty  requires  a  distinct  consideration 
to  support  such  engagement.33 

§  42.  Extension  of  Time — Promise  of  Third  Person  to 
Pay. — A  promise  to  forbear  the  collection  of  a  pre-existing  debt, 
will  be  no  consideration  for  the  promise  of  a  third  person  to  pay 
it,  unless  it  be  shown  that  such  forbearance  was  actually  granted 
upon  the  faith  of  such  third  person's  promise.54  So  the  suspen- 
sion of  the  right  of  the  creditor  to  enforce  payment  of  his  debt 
to  a  future  date  is  a  sufficient  consideration  for  the  promise  of  a 
third  person  to  pay  it.35  And  so  where  one  has  the  property  of 
a  debtor  under  his  control,  executes  a  promissory  note  at  the 
debtor's  request  payable  to  one  of  the  latter's  creditors,  which  is 
accepted  by  such  creditor  in  satisfaction  of  his  debt,  the  note  is 
based  upon  sufficient  consideration.36  And  so  an  agreement  to 
extend  the  time  of  payment  of  a  debt  is  a  sufficient  consideration 
for  the  execution  by  a  third  party  of  his  note  to  the  creditor  as 
collateral  security  for  the  payment  of  such  debt.37 

§  43.  Agreement  to  Forbear  for  an  Indefinite  Time. — 
An  agreement  to  forbear  foi  an  indefinite  time,  and  actual  for- 
bearance for  a  reasonable  time,  is  a  sufficient  consideration  for 
the  surety's  undertaking  If  no  specific  time  is  fixed  by  the 
agreement  of  the  parties,  the  law  presumes  that  a  reasonable 
time  was  intended.38     So  the  taking  of  a  new  security  payable 

"Harris  v.  Harris,  18U  Hi.  157. 

38Niehols  v.  Didrick,  61  Minn.  513;  Lowenstein  v.  Sorge,  75  Mo.  App.  281. 

*4  Jackson  v.  Jackson,  7  Ala.  791;  Harwood  v.  Kiersted,  20  111.  App. 
367  ;  Savage  v.  Bank,  112  Ala.  508. 

"Kansas  Mfg.  Co.  v.  Gandy,  11  Neb.  448;  Barnes  v.  Van  Keuren,  31 
Neb    165;  Pratt  v.  Hedden,  121  Mass.  116. 

86Clune  v.  Ford,  55  Hun,  479;  Moies  v.  Bird,  11  Mass.  436;  Jaffray  v. 
Brown,  75  N.  Y.  393. 

"Pratt  v.  Hedden,  121  Mass.  113.     See  sees.  113  et  seq.,  363  et  seq. 

98  Moore  v.  McKinney,  83  Me.  80;  Howe  v.  Taggart.  133  Mass.  284;  Coles 
v  Pack,  L.  R.  5  C.  P.  65;  Elton  v.  Johnson,  16  Conn.  253. 


30  SURETYSHIP  AND  GUARANTY.  (Ch.  3 

at  a  future  date,  by  operation  of  law  and  without  any  specific 
agreement  to  that  effect,  imposes  on  the  creditor  the  duty  of  wait- 
ing for  his  pay  until  the  new  security  matures.39 

§  44.  An  Agreement  Must  be  Made  to  Forbear. — A  prom- 
ise to  pay  the  debt  of  another,  although  in  writing,  is  not  enforci- 
ble,  unless  founded  upon  a  consideration.  Thus,  where  a  prom- 
ise is  to  pay  an  overdue  debt,  mere  forbearance  without  agree- 
ment to  that  effect,  is  not  a  consideration.40  There  must  be  an 
acceptance  of  the  offer  to  answer  for  the  debt  of  another  in  con- 
sideration of  forbearance,  in  order  to  complete  the  contract.41 
Thus,  mere  forbearance  to  sue  the  maker  of  a  note,  without  any 
agreement  to  that  effect  on  the  part  of  the  holder,  is  not  a  suffi- 
cient consideration.42  But  actual  forbearance  to  sue  on  a  note, 
in  connection  with  other  facts,  may  be  evidence  of  an  agreement 
to  forbear,  and  as  such  forms  a  sufficient  consideration.43 

§  45.  Offer  to  Become  Surety  for  Another. — A  person 
proposing  to  become  a  surety  for  another,  is  not  bound  to  inquire 
as  to  the  acceptance  of  his  offer.  The  creditor  who  intends  to 
hold  him  must  show  reasonable  notice  of  such  intention  Where 
ever  one  offers  his  name  with  that  of  others  as  surety  to  whom- 
soever may  accept  the  proposal,  he  is  entitled  to  notice  of  the 
acceptance,  and  is  not  obligated  to  make  inquiries  on  that  point.44 
The  reason  of  this  rule  is,  that  the  surety  may  have  the  oppor- 
tunity of  arranging  his  relations  with  the  party  for  whose  benefit 
ci  in  whose  favor  the  surety  is  given.45  But  where  the  agree- 
ment to  accept  is  contemporaneous  with  the  guaranty  or  surety- 
ship,  and  is  the  consideration  therefor,  and  all  the  parties  being 

•Andrews  v.  Morrett,  53  Me.  58!);  Kianer  v.  Pullen,  3  Daly,  4S5. 

40  Hosss  Estate,  150  Pa.  St.  346;  United  States  v.  Linn,  15  ?et.  290; 
Rumberger  v.  Golden,  90  Pa.  St.  34. 

41  Clark    v.    Russell.    3   Watts,   213. 

*•  Mecorney  V.  Stanley,  8  Cush.  85;  Breed  v.  Hillhouse,  7  Conn.  523. 
"Walker  7.  Sherman,  11  Met.  170;  Breed  v.  Hillhouse,  7  Conn.  523. 
"  Bteadham    v.    Guthrie,    4    Met.     (Ky.)     147;    Douglas   v.    Reynolds,    7 
Pel     n:;. 
"Thompson  v.  Glov<  r,  78  Ky.  193;  Eowe  v.  Nichols,  22  Me.  175. 


§  46)  EXECUTION  OF  THE  CONTRACT.  31 

privy  to  the  whole  transaction,  no  specific  notice  of  acceptance  is 
necessary.46 

§  46.  Extension  of  Time — Agreement  to  Pay  Interest. 
— Where  the  interest  is  paid  in  advance,  or  any  part  of  it,  this 
is  a  sufficient  consideration  for  the  forbearance.  But  another 
question  arises  whether  a  bare  promise  to  pay  interest  during  a 
fixed  period  of  extension  stipulated  for  is  a  sufficient  considera- 
tion. The  weight  of  authority  is  that  such  an  agreement  is  a 
valuable  consideration.  It  is  a  valuable  right  on  the  part  of  the 
creditor  to  have  his  money  placed  out  at  interest,  and  it  is  a 
valuable  right  on  the  part  of  the  debtor  to  have  the  privilege  at 
any  time  of  getting  rid  of  the  payment  of  interest  by  discharging 
the  debt.  By  this  contract  of  extension  the  right  to  interest  is 
secured  for  a  given  period,  and  the  right  to  pay  off  the  debt  and 
get  rid  of  paying  interest  is  also  relinquished  for  such  period. 
The  creditor  relinquishes  his  right  to  demand  immediate  pay- 
ment and  converts  the  debt  into  an  immatured,  interest-bearing 
security,  and  the  debtor  relinquishes  his  right  to  make  immedi- 
ate payment  and  binds  himself  to  pay  interest  for  the  time 
specified,  in  consideration  of  such  extension  on  the  part  of  the 
creditor.47  So  the  promise  of  the  holder  of  a  note  to  grant  an 
extension  of  the  time  for  its  payment,  for  a  certain  period,  after 
maturity,  in  consideration  of  the  promise  of  the  maker  to  pay 
interest  thereon  at  a  stipulated  rate  for  such  period,  constitutes 
a  valid  and  binding  agreement  upon  a  sufficient  consideration, 
notwithstanding  the  rate  of  interest  so  agreed  to  be  paid  is  less 
than  that  named  in  the  note.  The  maker  thus  assumes  an  obli- 
gation, not  before  imposed  upon  him,  and  the  holder  of  the  note 
acquires  an  additional  substantial  right — that  of  refusing  pay- 
ment and  exacting  interest  for  the  full  period  of  the  extension. 

48  Wildes  v.  Savage,  1  Story,  22 ;  Bleeker  v.  Hyde,  3  McLean,  279. 

"Parsons  v.  Harrold  (W.  Va.),  32  S.  E.  Rep.  1002;  Wood  v.  Newkirk, 
15  Ohio  St.  297;  Chute  v.  Patte,  37  Me.  102;  Stalling  v.  Johnson,  27  Ga. 
564;  Fowler  v.  Brooks,  13  N.  H.  240;  Robinson  v.  Miller,  2  Bush,  192; 
Stone  River  Nat.  Bank  v.  Walter  (Tenn.),  55  S.  W.  Rep.  301  ;  Dodgson  v. 
Henderson,  113  111.  301;  Benson  v.  Phipj.s.  ST  T>\.  578;  McComb  v. 
Kittridge,   14  Ohio,  348. 


32  SURETYSHIP  AND  GUARANTY.  (Cil.  3 

Such  mutual  promises  are  a  sufficient  consideration  each  for  the 
other,48  if  on  no  other  consideration.  In  such  case,  however, 
it  is  essential  that  there  be  a  definite  and  express  promise  on  the 
part  of  the  maker  of  the  note  to  pay  interest  for  the  stipulated 
time.  A  mere  promise  or  offer  on  the  part  of  the  one  to  whom 
payment  is  due  to  give  further  time,  without  a  positive  agree- 
ment on  the  part  of  the  debtor  to  pay  interest  for  such  time,  is  a 
promise  without  consideration  to  support  it.  It  is  a  mere  nudum 
pactum,  and  does  not  change  the  legal  relations  of  the  parties.49 
And  so  a  mere  payment  of  interest  in  advance  does  not  discharge 
the  surety.50 

§  47.  Both  Parties  Must  be  Bound. — It  is  essential  in  such 
extension  that  both  parties  shall  be  bound  by  the  agreement,  or 
that  it  shall  be  mutual.  Hence,  a  mere  indorsement  by  a  cred- 
itor upon  a  note,  that  the  time  of  payment  is  extended  to  a  given 
day,  and  that  interest  has  been  paid  to  such  date  at  the  same  rate 
specified  in  the  note,  without  any  proof  or  showing  that  the 
interest  was  in  advance,  there  being  no  date  to  such  indorse- 
ment and  no  evidence  that  the  debtor  bound  himself  to  keep 
the  money  or  pay  interest  for  the  time  of  such  extension — shows 
no  contract  or  agreement  by  the  debtor  to  such  arrangement.  It 
is  essential  that  both  parties  shall  be  bound  by  the  agreement,  or 
that  the  agreement  be  mutual.51  And  consideration  for  the 
extension  of  payment  must  be  something  more  than  the  mere 
doing  or  promise  to  do  something  by  the  debtor  which  was  obliga- 
tory upon  him  by  the  original  contract.52  It  is  immaterial  what 
rate  of  interest  is  to  be  paid  during  the  period  of  extension,  pro- 
vided it  is  not  a  rate  prohibited  by  law.  It  may  be  the  rate 
stipulated  in  the  original  contract,  or  a  different  rate.      The 

"Bailey  v.  Adams.  10  N.  H.  162;  English  v.  Landon,  181  111.  614; 
Fawoett  v.  Freshwater,  31  Ohio  St.  637;  Grossman  v.  Woheleben,  90  Til. 
537;  Moore  v.  Redding,  69  Miss.  841;  Wood  v.  Ncwlark,  15  Ohio  St.  295. 

"Fulton  v.  Matthews,  15  Johns.  433;  Bailey  v.  Adams,  10  N.  H.  162; 
In^los  v.  Sutlifl\  30  Kan.  444. 

••Morse  v.   Hlanohard.   117  Mirh.  37. 

61  Crossman  v.  Woheleben,  90  111.  537. 

"Ingles  v.  Sutliff,  30  Kan.  444. 


§  48,  id)  EXECUTION  OF  THE  CONTRACT.  33 

right  of  the  debtor  to  have  the  use  of  the  money  for  any  denned 
time,  and  the  right  of  the  creditor  to  get  interest  at  any  given 
rate  for  such  period  are  alike  valuable  in  law,  and  will  support 
the  mutual  promise — that  of  the  creditor  to  forbear  and  that  of 
the  debtor  to  retain  the  money  and  pay  interest.53  A  mere 
promise  by  the  creditor  to  forbear  without  any  promise  on  the 
part  of  the  debtor  not  to  pay  the  debt  during  the  time  of  the 
promise  to  forbear,  lacks  mutuality,  and  therefore  no  contract 
arises.  And  some  courts  hold  that  an  express  promise  to  pay 
interest  for  the  time  is  not  necessary,  and  that  such  an  agree- 
ment of  extension  had  all  the  essentials  of  a  valid  contract.54 
All  the  courts  hold  that  the  time  must  be  definite. 

§  48.  Extension  of  Time  by  Paying  Interest — Contrary 
Doctrine. — Another  line  of  authorities  hold  a  contrary  doc- 
trine. It  is  argued  that  as  the  debtor  has  already  impliedly 
bound  himself  to  continue  to  pay  interest  in  case  of  non-payment 
at  maturity,  the  new  promise  to  pay  interest  during  the  fixed 
period  of  extension  is  without  consideration.  The  creditor! 
receives  no  benefit  from  the  new  promise,  because  the  debtor  is 
already  bound  to  the  same  extent  by  his  original  promise.55 

§  49.  Delivery  of  Contract. — A  contract  of  surety  is  not 
complete  until  delivery  of  the  instrument  creating  it.  The  con- 
tract is  not  executed  until  delivery,  and  it  takes  effect  only  from 
execution  and  delivery.56  Thus  a  bond  signed  on  Sunday  and 
delivered  on  a  secular  day,  is  not  executed  until  delivered,  and, 
hence,  the  signing  on  Sunday  did  not  invalidate  it.57     How- 

"  Moore  v.  Redding,  69  Miss.  841. 

H  Nelson  v.  Flagg,  18  Wash.  39. 

"Kellogg  v.  Olmsted,  25  N.  Y.  189;  Reynolds  v.  Ward,  5  Wend.  501; 
Wilson  v.  Powers.  130  Mass.  427;  Abel  v.  Alexander,  45  Tnd.  523;  Rum- 
berger  v.  Golden,  99  Pa.  St.  34 ;  Hunt  v.  Postlewait,  28  Iowa,  427 ;  Draper 
v.  Romeyn,  18  Barb.  166. 

w Benjamin  v.  Ver  Nooy,  36  App.  Div.  581;  Commonwealth  v.  Kendig, 
2  Pa.  St.  448:  Bloxsom  v.  Williams,  3  B.  &  C.  232;  Lovejoy  v.  Whipnle, 
18  Vt.  379;  Hill  v.  Dunham,  7  Gray,  543;  Hall  v.  Parker,  37  Mich.  590; 
State  v.  Young,  23  Minn.  551. 

»'  State  v.  Young,  23  Minn.  551.  See,  also,  Richmond  v.  Moore,  107 
111.  429. 

3 


34  SURETYSHIP  AND  GUARANTY.  (Gil.  3' 

ever,  in  some  States  an  instrument  executed  on  Sunday  is  void, 
though  delivered  on  a  secular  day.58  A  deliverey  to  one  of  sev- 
eral obligees  is  a  sufficient  delivery;  it  is  not  necessary  that  all 
the  obligees  be  present  when  the  instrument  is  delivered.59 

The  obligation  of  a  surety  is  to  the  creditor  or  obligee,  and  not 
to  the  principal,  and  hence,  the  instrument  is  of  no  validity 
until  after  its  delivery.60 

§  50.  Delivery  in  Escrow. — A  deed  cannot  be  delivered  to 
the  grantee  in  escrow;  neither  can  a  bond  be  delivered  in  escrow 
to  the  obligee.  So  if  a  bond  is  delivered  to  the  obligee  or  his 
agent,  and  not  to  a  stranger,  the  delivery  is  absolute,  and  parol 
evidence  of  conditions  qualifying  the  delivery  is  inadmissible.61 
But  it  is  said  that  a  deed  may  be  delivered  to  a  co-obligor  in 
escrow  or  to  the  principal  by  the  surety.62  This  rule  must  be 
qualified,  because  there  may  be  cases  in  which  the  obligor  may, 
by  his  negligence,  impart  to  the  depositary  of  the  instrument 
delivered  in  escrow,  such  an  apparent  right  to  deliver  it  in  an 
unqualified  form  to  the  obligee,  as  to  prevent  the  obligor  from 
setting  up  the  existence  of  a  condition  that  was  never  complied 
with  before  the  instrument  became  deliverable.  Thus,  a  perfect 
bond  on  its  face,  executed  by  sureties  and  by  them  delivered  in 
escrow  to  the  principal  obligor,  and  who  delivered  it  in  the 
ordinary  course  of  business  to  the  obligee,  the  delivery  is  abso- 
lute and  valid ;  because  the  principal  obligor  had  been  clothed 
with  an  apparent  right  to  transfer  the  bond  without  qualifica- 
tion, and  as  the  obligee,  receiving  it  in  good  faith,  would  be  un- 
avoidably deceived  by  such  conduct,  it  must  be  considered  a 
valid  delivery.63     Delivery  to  the  obligee  without  notice  of  the 

"Parker  v.  Pitts,  73   Ind.  597. 

M  Moss  v.  Riddle,  5  Cranch,  351. 

90  Benjamin  v.  Ver  Nooy,  36  App.  Div.  581. 

"  Worrall  v.  Munn,  1  Seld.  229;  Cocks  v.  Barker,  49  N.  Y.  107;  Ordinary 
v.  Thatcher,  41  N.  J.  L.  403. 

"State  Bank  v.  Evans,  15  N.  J.  L.  155. 

"  Dait  v.  United  States.  16  Wall.  1;  Russell  v.  Freer,  56  N.  Y.  67:  Wolf 
v.  l)n    -     '  i   \.  .1.  Kq.  363. 


§  51)  EXECUTION  OF  THE  CONTRACT.  35 

condition,  or  any  circumstances  to  arouse  his  suspicion,  makes 
the  delivery  valid,  and  the  surety  will  be  liable.  Such  obligee  is 
considered  an  innocent  holder  for  value.64 

§  51.  Wrongful  Delivery  by  Principal. — The  general  rule 
as  to  the  wrongful  delivery  of  a  bond  by  the  principal,  is  this : 
A  bond  perfect  upon  its  face,  apparently  duly  executed  by  all 
whose  names  appear  therein,  purporting  to  be  signed  by  the 
several  obligors  and  actually  delivered  by  the  principal  without 
stipulation,  reservation  or  condition — cannot  be  avoided  by  the 
sureties  upon  the  ground  that  they  signed  it  on  condition  that  it 
should  not  be  delivered  unless  it  should  be  executed  by  other 
persons  who  did  not  execute  it,  when  the  obligee  receives  it  in 
good  faith,  or  is  an  innocent  party.65 

But  if  the  obligee  has  notice  of  such  facts  as  would  cause  a 
person  of  reasonable  prudence  to  invstigate  and  discover  that 
the  delivery  was  not  authorized,  then  he  cannot  hold  the  surety 
liable.66     And  if  the  surety  applies  to  the  creditor  for  informa- 

M  State  v.  Pepper,  31  Ind.  76;  Smith  v.  Peoria  Co.,  59  111.  412;  Johnson 
v.  Weatherwax,  9  Kan.  75;  State  v.  Potter,  63  Mo.  212;  Savings  Bank  v. 
Boddicker,    105    Iowa,   548. 

65  State  v.  Peck,  53  Me.  284;  Belden  v.  Hurlbut,  94  Wis.  562;  Butler  v. 
United  States.  21  Wall.  272;  Lewiston  v.  Gagne,  89  Me.  395;  White  v, 
Duggan,  140  Mass.  18;  Thomas  v.  Bleakie,  136  Mass.  568;  Russell  v.  Freer, 
56  N.  Y.  67;  Dunn  v.  Garrett,  93  Tenn.  650;  State  v.  Peffer,  31  Ind.  76; 
McCormick  v.  Bay  City,  23  Mich.  457;  State  v.  Potter,  63  Mo.  212;  Look- 
out Bank  v.  Aull,  93  Tenn.  645;  Cutler  v.  Roberts,  7  Neb.  4;  Nash  v. 
Fugate,  32  Gratt.  595;  Sawyer  v.  Campbell,  107  Iowa,  397;  Jordan  v. 
Jordan,  10  Lea,  124;  Ware  v.  Allen,  128  U.  S.  590;  Chicago  v.  Gage,  95 
111.  593;  State  v.  Supervisors.  59  111.  412;  Clarke  v.  Williams.  61  Minn.  12; 
State  v.  Young,  23  Minn.  89;  Stoner  v.  Keith  County,  48  Neb.  279;  Lewis 
v.  Commissioners,  70  Ga.  486;  Evans  v.  Daugherty,  84  Ala.  68;  Doorley  v. 
Lumber  Co.,  4  Kan.  App.  93;  Savings  Bank  v.  Boddicker,  105  Iowa,  54S, 
overruling  Daniels  v.  Gower,  54  Iowa,  319.  Pepper  v.  State,  22  Ind.  399, 
was  overruled  by  State  v.  Pepper,  31  Ind.  76.  Ayres  v.  Milony,  53  Mo.  516, 
was  examined  and  questioned  in  State  v.  Potter,  63  Mo.  212.  People*  v. 
Bostwick,  32  N.  Y.  445.  was  questioned  in  Russell  v.  Freer,  56  N.  Y.  67, 
and  cited  in  Whitford  v.  Laidler,  94  N.  Y.  145. 

86  Savings  Bank  v.  Boddicker,  105  Iowa,  548;  United  L.  Ins.  Co.  v. 
Salmon,  157  N.  Y.  682. 


36  SURETYSHIP  AND  GUARANTY.  (Ch.  3 

tion  respecting  the  principal  which  the  creditor  has  and  may 
properly  give,  but  which  he  withholds  without  sufficient  cause, 
or  if  he  knowingly  gives  false  information,  he  and  not  the  surety 
must  suffer  the  damage  occasioned  by  the  wrong.67 

So  if  the  creditor  promises  to  look  alone  to  the  principal  for 
payment,  and  the  surety,  in  reliance  on  that  promise,  surrenders 
securities  held  for  his  indemnity,  or  is  induced  to  omit  to 
procure  security,  or  otherwise  changes  his  position  in  reference 
to  the  principal,  he  then  is  no  longer  responsible  for  the  perform- 
ance of  the  obligation.68  Whenever  the  obligee  has  notice  that 
the  surety  signed  upon  condition  which  has  not  been  fulfilled, 
then  he  is  not  an  innocent  holder,  and  the  surety  is  not  bound.69 

In  order  that  failure  to  communicate  a  fact  to  the  surety  in 
respect  to  the  subject  matter  of  the  proposed  contract,  shall  have 
the  effect  of  a  fraud  upon  the  surety  and  vitiate  the  contract,  it 
must  be  a  fact  which  necessarily  increases  the  surety's  liability 
or  operates  to  the  prejudice  of  his  interest.70  And  so  the  mere 
failure  of  the  obligee  to  disclose  a  fact  to  the  surety,  when  he 
is  under  no  obligation  to  speak,  is  not  sufficient  to  release  the 
surety.71 

§  52.  Imperfect  Instrument. — In  some  cases  the  principal 
fails  to  execute  the  instrument,  and  then  the  question  arises, 
are  the  sureties  liable  ?  The  courts  do  not  agree,  and  their  deci- 
sions are  in  conflict.  In  many  jurisdictions  the  sureties  are 
liable,  though  the  name  of  the  principal  is  not  subscribed  to  the 

67  Wolf  v.  Madden,  82  Iowa,  114;  Powers  Dry-Goods  Co.  v.  Harlin,  68 
Minn.  193 

68  Harris  v.  Brooys,  21  Pick.  195;  Bank  v.  Haskell,  51  N.  H.  116;  Whit- 
aker  v.  Kirby,  54  Ga.  277. 

"'•'Middleboro  Nat.  Bank  v.  Richards,  55  Neb.  682;  Comstock  v.  Gage,  91 
111.  328;  Deering  Harv.  Co.  v.  Peugh,  17  Ind.  App.  400;  Markland  Mining 
Co.  v.  Kimme,  87  Ind.  5(»0. 

70  Comstock  v.  Gage,  91  111.  328;  Roper  v.  Sangamon  Lodge,  91  111.  518. 

"Lake  v.  Thomas,  84  Md.  608. 


§  52)  EXECUTION  CT<'  THE  COXTKACT.  37 

instrument.72  Other  authorities  hold  that  such  bonds  are  of  no 
validity,  and  that  the  sureties  are  not  liable.73 

In  those  jurisdictions  where  the  surety  is  held  liable  on  such 
bonds,  he  may  maintain  an  action  against  the  officer  for  any  sum 
he  may  be  compelled  to  pay  as  such  surety,  notwithstanding  such 
officer  never  signed  and  executed  the  bond.74  Of  course  an 
instrument  should  be  complete  before  the  maker  or  surety 
delivers  it.  But  if  there  is  anything  on  the  face  of  it,  or  any 
attending  circumstances  to  apprise  the  obligee  that  the  instru- 
ment has  been  delivered  by  the  surety  to  his  principal  to  be 
delivered  to  the  obligee  only  upon  certain  conditions  which 
have  not  been  fulfilled,  ther  the  obligee  is  not  an  innocent  holder, 
and  the  surety  is  not  liable.75  When  the  delivery  is  made 
directly  to  the  obligee,  it  cannot  be  regarded  as  conditional  in 
respect  to  the  party  who  makes  it,  unless  the  condition  is  made 
known  to  the  obligee.  If  the  obligee  knows  of  the  condition 
attached  to  the  delivery,  then  he  will  be  presumed  to  assent  from 
his  acceptance  of  the  instrument,  and  cannot  then  repudiate  the 
condition.76 

Although  there  may  be  expectations  that  there  is  to  be  another 
surety  from  the  statement  of  the  principal  when  the  bond  was 

"Trustees  v.  Sheik,  119  111.  579;  Williams  v.  Marshall,  42  Barb.  524; 
Parker  v.  Bradley,  2  Hill  (N.  Y.),  584;  Loew  v.  Stockney,  68  Pa.  St.  226; 
Scott  v  Whipples,  5  Me.  336;  Johnson  v.  Weatherwax,  9  Kan.  75;  State 
v.  Pack,  53  Me.  284;  Tillson  v.  State,  29  Kan.  452;  State  v.  Peyton,  32 
Mo.  App.  522;  Keyser  v.  Keen,  17  Pa.  St.  327;  State  v.  Bowman,  10  Ohio, 
445;  Herrick  v.  Johnson,  11  Met.  26;  Haskins  v.  Lombard,  16  Me.  140; 
Grimm  v.  School  Dist.,  51  Pa.  St.  219;  Miller  v.  Ferris,  10  Upper  Can.  423; 
Bollman  v.  Posewalk,  22  Neb.  761 . 

73  Goodyear  Dental  Vulcanite  Co.  v.  Bacon,  151  Mass.  460;  People  v. 
Hartley,  21  Cal.  585;  Bum?  v.  Jetmore,  70  Mo.  228;  Wills  v.  Dill,  6  Martin 
(La.),  665;  Johnston  v.  Kimball,  39  Mich.  187;  Hall  v.  Parker,  39  Mich. 
289;  Green  v.  Kindy,  43  Mich.  279;  Board  v.  Sweeney.  1  S.  Dak.  642; 
Sacramento  v.  Dunlap,  14  Cal.  421;  Fletcher  v.  Austin.  11  Vt.  447:  State 
v.  Austin,  35  Minn.  51;  Russell  v.  Annabel,  109  Mass.  72;  Bean  v.  Parker, 
17  Mass.  403;  Gregory  v.  Cameron,  7  Neb.  414. 

.'♦Trustees  v.  Sheik,  119  111.  579. 

7S  Cutler  v.  Roberts,  7  Neb.  4;  Crystal  Lake  v.  Hill,  109  Mich.  246; 
Savings  Bank  v.  Boddicker.  105  Iowa,  548;  Mullen  v.  Morris,  43  Neb.  596. 

78  Ward  v.  Churn,  18  Gratt.   801. 


38  SURETYSHIP  AND  GUARANTY.  (Ch.  3 

signed  by  the  surety,  his  bond  is  binding  upon  the  one  signing, 
although  not  signed  by  the  other.77  Thus,  A  executed  a  promis- 
sory note  payable  to  the  order  of  B,  and  induced  C  and  D  to  sign 
as  sureties,  who  signed  and  re-delivered  it  to  A  upon  the  promise 
that  he  would  procure  other  persons  named  by  them  also  to 
execute  such  note  as  sureties.  In  disregard  of  his  promise  A 
delivered  the  note  to  B  without  procuring  the  additional  sureties 
agreed  upon ;  the  sureties  C  and  D  were  bound.78  But  the  rule 
is  different  where  a  surety  signs  the  bond  which  is  to  be  deliv- 
ered only  upon  being  signed  by  another  whose  name  appears  in 
the  bond  as  a  co-obligor.  If  delivered  without  being  signed  by 
the  other  whose  name  appears,  without  the  consent  cf  the  one 
who  has  signed,  the  delivery  is  a  nuility  and  the  one  signing  is 
not  bound.79 

If  the  instrument  is  incomplete  on  its  face,  and  there  has  been 
a  premature  delivery,  the  obligee  takes  it  with  notice,  because 
the  obligee  is  presumed  to  have  notice  of  its  form  and  the  rea- 
sonable import  thereof.80  The  agreement  must  be  written  be- 
fore delivery.  Thus,  a  blank  piece  of  paper  signed  and  executed 
by  the  principal  and  sureties,  which  the  principal  afterwards  fills 
out  according  to  agreement,  is  not  binding;81  but  if  it  be  a 
printed  blank,  such  as  a  note,  the  surety  can  sign  the  blank  and 
give  the  principal  authority  to  fill  up  the  note ;  and  if  wrongfully 
filled  up  the  surety  is  bound.82 

§  53.  Surety's  Name  Not  Appearing  in  the  Body  of  the 
Instrument. — If  parties  sign  a  bond  as  sureties,  but  their 
names  do  not  appear  in  the  body  of  the  bond,  they  are  bound.83 
So  it  is  not  essential  to  charge  a  surety  on  a  bond  that  his  name 

n  Simp.son  v.  Bovard,  74  Pa.  St.  351. 

"Deardorff  v.  Foresman.  24  Ind.  481. 

T»  Allen  v.  Marney,  65  Ind.  398. 

""Hall  v.  Parker,  37  Mich.  590;  Fales  v.  Filley,  2  Mo.  App.  345. 

"Penn  v.  Hewlett,  27  Gratt.  337.  Compare  Wiley  v.  Moor,  17  Serg. 
&  R.  292. 

■  Robeson  v.  Blerins,  57  Kan.  50. 

•Neil  v.  Morgan,  28  111.  624;  Potter  v.  State,  23  Ind.  550:  Holmes  v. 
State,   17   Neb.  73. 


§  54,  55)       EXECUTION  uy  THE  CONTRACT.  39 

must  appear  in  the  body  of  the  bond  if  he  otherwise  executes 
it.84  And  so  whore  there  is  a  greater  number  of  signatures  than 
seals  on  a  bond,  two  or  more  of  the  signers  may  adopt  one  seal 
and  thereby  become  liable,  although  the  names  of  all  the  obligors 
do  not  appear  in  the  body  of  the  instrument.85 

§  54.  Principal  Not  Signing — Name  in  Body  of  the  In- 
strument.— The  decisions  of  the  courts  are  not  harmonious  as 
to  whether  the  sureties  are  liable  where  the  principal's  name 
appears  in  the  body  of  the  bond,  but  he  does  not  sign  it.  One 
line  of  decisions  hold  that  when  the  principal's  name  is  in  the 
body  of  the  bond,  though  he  does  not  sign  it,  the  sureties  who 
sign  are  liable.86  So  if  the  bond  is  not  executed  by  the  princi- 
pal, if  his  name  is  mentioned  in  the  body  of  the  instrument,  the 
surety  is  bound,  though  the  obligor  does  not  sign  the  bond.87 
But  in  some  States,  in  such  case  the  sureties  are  not  liable  unless 
the  bond  is  signed  by  the  principal.88 

§  55.  Alteration  of  the  Instrument. — A  material  altera- 
tion of  a  bond  or  note  after  its  execution,  when  intentionally 
made,  by  one  having  an  interest  in  it,  and  without  the  consent 
of  the  party  bound  by  it,  invalidates  the  instrument  as  to  such 
party.      The  alteration  destroys  the  identity  of  the  contract; 

^Leith  v.  Bush,  61  Pa.  St.  395;  Danker  v.  Atwood,  119  Mass.  146;  Sheid 
v.  Liebshultz,  51  Ind.  38. 

85  Building  Association  v.  Cummings.  45  Ohio  St.  664. 

80  Trustee  v.  Sheik,  119  111.  579;  State  v.  Hill,  47  Neb.  456;  Loew  v. 
Stoekney,  68  Pa.  St.  226;  Siertz  v.  Forquer,  94  Cal.  91;  State  v.  Bowman, 
10  Ohio,  445. 

"Bollman  v.  Posewalk,  22  Neb.  761;  State  v.  Peyton,  32  Mo.  App.  522; 
Tillson  v.  State,  29  Kan.  452;  Adams  v.  Kellogg,  63  Mich.  616;  Parker  v. 
Bradley,  2  Hill  (N.  Y.),  584;  Johnson  v.  Johnson,  31  Ohio  St.  131; 
Douglas  County  v.  Bardo,  79  Wis.  641;  Chase  v.  Hathorn,  61  Me.  505; 
Wildcat  Branch  v.  Ball,  45  Ind.  213. 

88  Brown  v.  Jetmore,  70  Mo.  228;  Cay  v.  Murphy,  134  Mo.  98;  Ferry  v. 
Burchard,  21  Conn.  602;  Russell  v.  Annable,  109  Mass.  72:  Bean  v.  Parker, 
17  Mass.  603;  Green  v.  Kindy.  43  Mich.  270:  Goodyear  Dental  Vul.  Co.  v. 
Bacon,  151  Mass.  460;  State  v.  Austin,  35  Minn.  51.  But  in  both  classes 
of  cases  most  of  the  decisions  are  supposed  to  rest  upon  construction  of 
the  local  statute  as  to  joint  and  several  liability. 


40  SUEETYSHIP  AND  GUARANTY.  (Ch.  3 

therefore,  if  a  party  to  a  contract  who  has  not  consented  to  the 
alteration  were  to  be  bound  by  it,  it  would  be  in  effect  imposing 
upon  him,  against  his  will,  a  new  contract,  as  to  whose  terms 
he  never  agreed.89  Thus,  if  A  borrows  of  B  $1,000  upon  his 
note  indorsed  by  C,  and  afterwards,  without  the  consent  or 
knowledge  of  C,  but  with  the  knowledge  and  consent  of  B,  the 
note  was  also  by  A  raised  to  $1,500,  as  security  for  the  addi- 
tional $500,  which  thereupon  B  loaned  to  A,  such  alteration  in- 
validated the  note  entirely  as  to  C.90  Such  material  alterations 
apply  to  contracts  of  suretyship.91 

The  general  rule  is  that  an  alteration  wmch  does  not  destroy 
the  identity  of  a  written  instrument,  nor  in  any  way  affects  the 
liability  thereof  of  the  surety,  is  not  such  an  alteration  as  will 
release  the  surety.92 

§  56.  Filling  Blanks — As  to  Surety's  Liability. — The 
surety  may  be  held  liable  on  a  bond  which  he  signs,  the  bond 
not  being  filled  up.  Thus,  if  the  surety,  relying  upon  the  good 
faith  of  the  principal,  signs  a  bond  in  blank  and  returns  it  to 
the  principal,  the  surety  thereby  clothes  him  with  apparent 
authority  to  fill  up  the  blanks  at  his  discretion  in  any  appropri- 
ate manner  consistent  with  the  nature  of  the  obligation,  so  that 
the  surety  is  bound  as  to  an  innocent  obligee  or  payee.93  Hence, 
parol  authority  is  sufficient  to  fill  up  a  sealed  instrument,  and 
this  filling  up  is  sufficient  to  hold  the  surety.94  A  party  exe- 
cuting a  bond,  knowing  that  there  are  blanks  in  it  to  be  filled  up 
-sary  to  make  it  a  perfect  instrument,  must  be  considered 

"Neff  v.  Homer,  63  Pa.  St.  330;  Chadwiek  v.  Eastman,  53  Me.  12;  Wood 
v.  Bteele,  6  Wall.  80. 

"Bateheldei   v.  White,  80  Va.  103. 

"Smith  v.  United  States,  2  Wall.  219;  Reese  v.  United  States,  9  Wall. 
13;  Stoner  v.  Keith  County,  48  Neb.  279;  State  v.  Findley,  101  Mo.  368. 

"Bank  v.  \\\<}o.  131  Mass.  77;  Bueklen  v.  Huff,  53  Ind.  74;  Barber  v. 
Burrows,  .r>l   Cal.  404;   Sawyer  v.  Campbell,  107  Iowa,  397. 

"  Chicago  v.  Gage,  95  111.  593;  Smith  v.  Crooker,  5  Mass.  538;  Green 
County  v.  Wilhite,  29  Mo.  App.  459;  Stahl  v.  Berber.  10  Serg.  &  R.  170; 
Ex  parte  Kerwin,  8  Cow.  118. 

•'  Bartletl  v.  Board,  59  111.  364;  Swartz  v.  Ballon,  47  Iowa.  188:  State  v. 
.Young,  23  Minn.   551 . 


§"57,  58)'      EXECUTION  OF  THE  CONTRACT  41 

'as  agreeing  that  the  blanks  may  be  thus  filled  after  he  has  exe- 
cuted the  bond.05  In  such  cases  the  sureties  are  responsible  for 
tin  additions  that  may  be  made  to  the  instrument  without  knowl- 
edge of  the  obligee  or  payee.96 

§  57.  Negotiable  Notes. — Tne  same  rme  applies  to  nego- 
tiable notes.  Thus,  where  a  party  to  such  an  instrument  in- 
trusts it  to  the  custody  of  another  for  use  with  blanks  not  filled 
up,  whether  it  be  to  accommodate  the  person  to  whom  it  was  com- 
mitted, or  to  be  used  for  the  benefit  of  the  signer  of  the  same, 
such  instrument  carries  on  its  face  the  implied  authority  to  fill 
up  the  blanks  necessary  to  perfect  the  same.  And  as  between 
such  party  and  an  innocent  transferee,  the  former  must  be 
deemed  the  agent  of  the  party  who  committed  the  note  to  his 
care  in  filling  the  blanks  necessary  to  perfect  the  instrument.97 
Thus,  sureties  signed  a  note  in  blank  and  left  it  with  the  princi- 
pal. The  principal  filled  the  blank  with  a  larger  sum  than  the 
sureties  had  agreed  to  become  liable  for,  and  delivered  it  to  the 
creditor,  who  was  an  innocent  holder  for  value ;  in  such  case 
the  sureties  are  bound  for  the  entire  amount.98  So  if  a  surety 
makes  it  a  condition  that  another  shall  sign,  and  the  principal 
forges  the  name  of  the  other  surety,  the  first  one  will  be  held.99 
This  is  on  the  ground  that  where  two  innocent  parties  must  be 
losers  by  the  deceit  or  the  fraud  of  another,  the  loss  must  fall 
on  him  who  makes  it  possible  to  be  thus  defrauded.100 

§  58.  Surety  Signing  as  Principal. — It  is  a  general  rule 
that  a  party  cannot  contradict  his  own  note  or  Mnd.      So  where 

"South  Berwick  v.  Hunter,  53  Me.  89;  State  v.  Pepper,  31  Ind.  76;  Me- 
Cormick  v.  Bay  City,  23  Mich .  457 . 

98  Rich  v.  Starbuck,  51  Ind.  87;  Danker  v.  Atwood.  119  Mass.  146; 
Dedlieh  v.  Doll.  54  N.  Y.  234;  Schuyver  v.  Hawkes,  22  Ohio  St.  308;  White 
v.  Duggan,  140  Mass.  18;  Donnell  Manf.  Co.  v.  Jones,  49  111.  App.  327^ 

87  Angle  v.  Insurance  Co.,  92  U.  S.  330. 

"Tullerton  v.  Sturges,  4  Ohio  St.  529. 

"Stoner  v.  Milliken,  85  111.  218;  York  County  Ins.  Co.  v.  Brook9,  51  J3& 
506;  Selsef  v.  Brock,  3  Ohio  St.  302. 

100Stoner  v.  Milliken.  85  111.  218;  Hun  v.  Nichols,  1  Salk.  2SS>5  Donnen 
Manf.  Co.  v.  Jones,  49  111.  App.  327. 


42  suretyship  axl-  gl"aea:\"ty.  Il  3 

one  expressly  agrees  to  be  bound  as  principal,  and  so  eigne,  he 
is  estopped  from  asserting  against  the  obligee  or  payee  that  he 
is  a  surety.101  Because  when  one,  who  is  in  reality  only  a 
surety,  signs  expressly  as  principal,  he  must  be  held  in  that 
capacity.102 

§  59.  Estoppel  of  Surety  to  Dexy  Recitals  ix  the  Ix- 
strumext. — It  is  also  the  established  rule  that  sureties  are 
estopped  to  deny  the  facts  recited  in  their  obligations,  whether 
true  or  false.103  Thus,  sureties  on  a  bond  for  the  delivery  of 
goods  to  a  party,  provided  the  court  should  so  order,  the  recitals 
in  that  instrument  being  that  the  sheriff  had  made  seizure  and 
levy  on  the  goods,  cannot  deny  the  fact  that  the  sheriff  had  made 
seizure  and  levy  of  the  goods,  because  they  are  estopped  to  deny 
the  sufficiency  and  validity  of  the  seizure  of  the  goods  and  levy 
of  the  attachment.104 

§  60.  Dexyixg  Valid  Appoixtmext  of  Principal. — Sure- 
ties cannot  deny  the  valid  appointment  of  their  principal  to 
office  in  order  to  avoid  liability.  In  other  words,  if  sureties 
have  signed  the  bond  they  are  responsible.  "Where  a  bond  is 
voluntarily  entered  into,  the  sureties  are  estopped  by  the  recitals 
in  the  bond  which  admit  the  due  appointment  of  their  princi- 
pal.105 By  executing  the  bond  they  obtain  for  their  principal 
certain  rights  of  action,  and  therefore  cannot  escape  liability 
by  denying  their  own  bond.106     And  so  the  sureties  are  liable, 

1(CSprigg  v.  Bank.  10  Pet.  257;  14  Pet.  201;  Dart  v.  Sherwood.  7  Wis. 
446;  Waterville  Bank  v.  Redin?ton.  52  Me.  466;  Heath  v.  Bank.  44 
N.  H.    174. 

""McMillan  v.  Parkell,  r,4  Mo.  286;  Picot  v.  Signiago,  22  Mo.  587; 
Derry  Bank  v.  Baldwin.  41  N.  H.  434:  Clermont  Bank  v.  Wood.  10  Vt. 
582.     See  sec.  210. 

™"  United  States  v.  Bradley.  10  Pet.  365:  Rocrers  v.  United  States,  32  Fed. 
Rep.  890;  People  v.  Huson,  78  Cal.  154:  Brockway  v.  Petted.  79  Mieh.  620 
Bruce  v.  United  States,   17  Bow.  437:   Harrison  v.  Wilkin.  69  X.  Y.  412 
Hanley  v.  Filbert,  73  Mo.  34:  Olson  v.  Royem  (Minn.),  77  N.  W.  Rep.  813 
■     Folb.   123  N.  Car.  239. 

■•*  I'  inley  v.  Filbert,  7::  M. 

"•Cutlei    v.   Dickinson,  8  Pick.  387. 

104Shroyer  v.  Richmond,  16  Ohio  St.  455;  Gray  v.  State,  78  Ind.  68. 


§  61,  62)       EXECUTION  OF  THE  CONTRACT.  43 

though  their  principal  has  been  continued  in  the  same  capacity, 
after  he  has  failed  to  perform  his  duty,  of  which  the  surety  has 
not  been  advised.107  And  the  general  rule  is  that  sureties  can- 
not deny  the  appointment  to  office  of  their  principal ;  that  is, 
set  up  that  such  appointment  was  invalid.108  And  the  fact  that 
the  bond  is  not  prescribed  by  statute  does  not  necessarily  make 
it  invalid,  although  given  by  a  public  officer  as.  security  for  the 
discharge  of  his  duties,  if  they  are  not  unlawful ;  if  voluntarily 
given,  such  bonds  are  binding  upon  all  the  parties.109 

§  61.  Sureties  Cannot  Deny  the  Incorporation  of  Cor- 
porate Bodies  With  Whom  Their  Principal  Deals. — 
Obligors  in  a  bond  are  estopped  to  deny  the  corporate  existence 
of  bodies  to  whom  it  was  given.  Thus,  the  sureties  on  a  treas- 
urer's bond  cannot  deny  the  validity  of  the  corporate  organiza- 
tion of  the  corporation  who  is  the  obligee.110  And  so  where  a 
person  becomes  surety  upon  a  bond  given  to  a  corporation,  he 
cannot  deny  its  legal  existence.111 

Neither  can  sureties  deny  the  acts  of  the  corporation,  by  declar- 
ing that  the  corporate  authority  has  been  extended  beyond  legiti- 
mate bounds.112 

§  62.  Denying  Court's  Jurisdiction. — When  there  is  an 
action  on  a  bond  given  in  the  ordinary  course  of  legal  business, 
the  sureties  will  be  estopped  to  deny  the  jurisdiction  of  the  court 

107  Ho-.p  Ins.  Co.  v.  IloJwoy,  55  Towa,  571;  Phoenix  Ins.  Co.  v.  Findley, 
59  Iowa.,  591. 

108  White  v.  Weatherbee,  12G  Mass.  450;  Williamson  v.  Woodman.  73  Me. 
163;,JturnGtj^J^nd^rj^^  588;  Otto  v.  Jackson,  35  111.  349. 

109  UnT^eT^tatos  v.  Tim  ry,  %  Pet  fg&.  Taylor  v.  Hand,  7  How.  581; 
United  States  v.  Bradley,  10  Pet.  361.  Compare  Thomas  v.  Burrus,  23 
Miss.  550;  Hudson  v.  Winslow,  35  N.  J.  L.  437. 

""Father  Matthew  Soc.  v.  Fitzwilliams,  84  Mo.  407. 

111  White  v.  Coventry,  29  Barb.  30.5:  Trumbull  Co.  a-.  Horner.  17  Ohio, 
407:  Fort  Wayne,  etc.,  Co.  v.  Deane,  10  Ind.  563;  Singer  Manf.  Co.  v. 
Bennett.  28  W.  Va.  16. 

112  People  v.  Burton,  5  Seld.  176;  State  v.  Buffalo,  2  Hill  (N\  Y.),  434 
Baehmer  v.  Schuylkill,  46  Pa.  St.  452;  McLean  v.  State,  8  Heisk.  22 
Mississippi  Co.  v.  Jackson,  51  Mo.  23;  Wilson  v.  Monticello,  85  Ind.  10 
Denison  v.  Gibson,  24  Mich.   187. 


44  SURETYSHIP  AND  GUARANTY.  (Ch.  3 

In  many  cases  bonds  are  given,  and  when  accepted  by  the  court 
ihe  principal  and  sureties  are  estopped  to  deny  their  validity.113 
Thus,  when  the  principal  tenders  a  bond  to  the  court,  such  as 
the  law  requires,  justice  requires  that  neither  the  principal  nor 
the  sureties  shall  be  permitted  to  question  the  validity  of  the 
bond  or  that  the  court  did  not  have  jurisdiction  of  the  subject- 
matter.114 

§  63.  Attacking  Bond  in  Collateral  Proceedings. — 
Xeither  can  the  principal  or  sureties  attack  a  bond  in  collateral 
proceedings  upon  the  ground  that  it  is  void.115  And  so  sureties 
for  purchase-money,  with  notice  of  defects  in  the  title  to  the  land 
purchased,  are  estopped  from  setting  up  the  bad  title  in  a  suit 
for  the  purchase  money.116  Under  the  same  principle  a  surety 
on  a  bond  for  alimony  cannot  deny  that  the  woman  receiving 
the  alimony  was  the  wife  of  his  principal.117 

§  64.  Relations  After  Judgment. — After  the  debt  has  been 
reduced  to  judgment,  the  relation  of  principal  and  surety  has 
not  been  changed.  The  merger  of  the  contract  into  judgment 
does  not  change  their  relations.  Its  only  effect  is  a  change  in 
form  of  the  credit  as  between  the  principal  and  surety.118  The 
judgment  does  not  abrogate  the  relation  of  suretyship  between 
the  parties.119 

§  65.  Effect  of  Judgment  on  Surety. — Sureties  are  bound 
jy tike  judgment  against  their  principal  to  the  same  extent  that 

:^72,(Jdell  v.  Bradway,  S4  Ind.  537;  Harbough  v.  Albertson,  102  Ind.  69. 

aa Carver  v.  Carver,  77  Ind.  498. 

**Nevitt  v.  Woodburn,  ICO  111.  203;  Monteith  y.  Commonwealth,  15 
Gratt.  172.  185;  Stoval  v.  Banks,  10  Wall.  583. 

m  Ellis  v.  Adderton,  88  N.  Car.  472. 

117  Commissioners  v.    O'Rourk,  34  Hun,  349. 

"■  Bangs  v.  Strong,  4  N.  Y.  415;  Moss  v.  Pettingill,  3  Minn.  217;  Smith 
v.  Hire,  27  Mo.  505;  Commonwealth  v.  Miller,  8  Serg.  &  R.  452;  Davis  v. 
Maynard,  9  Mass.  242;  Blazer  v.  Bundy,  15  Ohio  St.  57. 

"•Chambers  v.  Cochran,  18  Iowa,  159;  Carpenter  v.  Denon,  5  Ala.  710; 
Cowen  v.  Culbert,  3  Ga.  239;  Morton  v.  Rice,  19  Mo.  263. 


§65)  EXECUTION  OF  THE  CONTKACT.  45 

'  their  principal  is.120  If  the  effect  of  the  obligation  is  such  that 
the  surety  is  to  be  bound  by  the  results  of  the  litigation  between 
others  he  is,  in  the  absence  of  fraud  or  collusion,  bound  by  such 
results.  Where  the  bond  is  not  merely  to  pay  damages,  but  is 
an  indemnity  against  liability  by  judgment,  it  is  conclusive.121 
But  in  some  States  it  is  held  the  liability  of  the  surety  depends 
upon  the  character  of  the  bond.  If  it  undertakes  to  pay  such 
judgment  as  may  be  recovered,  that  judgment  is  conclusive,  be- 
cause that  judgment  is  the  event  on  the  happening  of  which  the 
surety  agrees  to  pay;122  but  a  judgment  against  the  principal 
does  not  bind  the  surety  as  a  general  rule,  because  it  is  only 
prima,  facie  evidence  of  liability  to  its  extent.123 

120Stovall  v.  Banks,  10  Wall.  583;  Shepard  v.  Pebles,  38  Wis.  373;  Meyer 
v.  Barth,  97  Wis.  352;  Richardson  v.  Bank,  57  Ohio  St.  299;  State  v. 
Slauter,  80  Ind.  597 ;  Heard  v.  Lodge,  20  Pick.  53 ;  Irwin  v.  Backus,  25  Cal. 
214;  Smith  v.  Smithson,  48  Ark.  261;  Martin  v.  Tally,  72  Ala.  23;  Housh 
v.  People,  66  111.  178;  Nevitt  v.  Woodburn,  160  111.  203;  Moulding  v.  Wil- 
hartz,  169  111.  422;  Holden  v.  Curry,  85  Wis.  504;  McKim  v.  Haley,  173 
Mass.  112. 

111  Conner  v.  Reeves,  103  N.  Y.  527;  Riddle  v.  Baker,  13  Cal.  295. 

122  Crawford  v.  Turk,  24  Gratt.  176;  State  v.  Nutter,  44  W.  Va.  385. 

123  State  v.  Nutter,  44  W.  Va.  385;  Craddock  v.  Turner,  6  Leigh,  116; 
Jacobs  v.  Hill,  2  Leigh,  393. 


4G  SUKETYSHIP    A2sD    GUA.RANXY.  (Ch.  4 


CHAPTER  IV. 

SCOPE   OF   SURETY'S   LIABILITY. 

§  66.  Extent  of  Surety's  Contract. — It  is  well  established 
that  the  obligation  of  a  surety  is  not  to  be  extended  beyond  what 
the  terms  of  the  contract  fairly  import.  So  a  surety  has  a  right 
to  stand  upon  the  very  terms  of  his  contract,  and  if  he  does  not 
assent  to  any  variance  of  it,  and  a  variation  is  made,  such  varia- 
tion operates  to  annul  his  contract.1  Thus,  when  a  surety  stands 
bound  for  the  fidelity  or  capacity  of  a  principal  in  an  official 
capacity,  if  the  nature  of  the  employment  is  so  changed  by  the 
act  of  the  employer  that  the  risk  of  the  surety  is  materially 
altered  from  what  was  contemplated  by  the  parties  at  the  time 
of  entering  into  the  bond,  the  surety  has  a  right  to  say  that  his 
obligation  does  not  extend  to  such  altered  state  of  tilings;  this 
is  the  general  rule  recognized  by  all  courts.2 

So  the  surety  cannot  be  held  beyond  the  precise  terms  of  his 
contract.  This  is  the  well  settled  rule,  both  at  law  and  in 
equity.3  And  the  scope  of  his  liability  is  to  be  gathered  from 
the  whole  instrument  in  which  the  obligation  is  contained.4 

'Australian  Joint  Stock  Bank  v.  Bailey  (1899).  App.  Cas.  396;  Lee  v. 
Dick,  10  Pet.  482:  Crist  v.  Burlingham.  62  Barb.  351;  Hoe?  v.  Jarman,  39 
N.  J.  L.  523 :  Locke  v.  Me  Yean.  33  Mich.  473. 

'Miller  v.  Stewart.  9  Wheat.  680:  Pybus  v.  Gibb.  6  El.  &  B.  902:  Manu- 
facturers' Xat.  Bank  v.  Dickerman,  41  X.  J.  L.  448:  Mumford  v.  Railroad 
Co.,  2  Lea.  393:   First  Nat.  Bank  v.  Gerke.  OS  Md.  449. 

■McKicken   v.   Webb,   6   How.   292:    Bowmaker  v.   Moore.   7    Price.   223 
Smith  v.  United  States.  2  Wall.  219:  McL'lu>key  v.  Cromwell.  11  N.  Y.  593 
McDonald  v.  Harris.  75   111.  App.   Ill:   Lafayette  v.  James.  92  Ind.   240 
Ryan  v.  Williams,  29  Kan.  4S7  :  Hopewell  v.  McGrew.  50  Neb.  7S9:  Howard 
Co.  v.  Hill.  88  Md.  Ill:  Ryan  v.  Morton.  65  Tex.  258;  Tomlinson  v.  Simp- 
33  Minn.  443:  Lee  v.  Hastings.  13  Neb.  508:  Burson  v.  Andes.  83  Va. 
Whiles  v.  Boyd,  114  Pa.  St.  228;  Webster  Co.  v.  Hutchinson.  60  Iowa, 
721  :  Manufacturers'  Hank  v.  Cole.  39  Me.  188;  Shine  v.  Bank.  70  Mo.  524: 
People  v.  Toomcy.   122  111.  308;   Merchants'  Nat.  Bank  v.  Hall.  S3  N.  Y. 
Btreeper  v.  Srwinj:  Mach.  Co.,  112  I'.  S.  87  ':  McCartney  v.  Ridgway, 
(11.    12!». 
'  Australian  Joint  Stock  Bank  v.  Bailey  (1899).  App.  Cas.  396. 


§  6*7)  scope  of  surety's  liability.  47 

§  67.  Construction  of  Contract — At  Law. — The  terms 
used  and  the  language  employed  in  guaranties,  letters  of  credit, 
and  other  obligations  of  sureties,  must  have  a  reasonable  inter- 
pretation, according  to  the  intent  of  the  parties,  as  disclosed  by 
the  instrument,  read  in  the  light  of  surrounding  circumstances 
and  purpose  for  which  it  was  made.5  And  the  surety  is  liable 
to  the  same  extent  as  the  principal,  and  such  liability  need  not 
be  fixed  by  a  judgment  of  court.6  And  where  the  surety  states 
the  amount  for  which  he  will  be  liable,  that  fixed  the  extent  of 
his  liability.7  The  liability  of  a  surety  must  be  ascertained  by 
reference,  not  to  the  recital  alone,  but  to  the  bond  in  its  entirety.8 

It  is  unquestionably  the  well  settled  rule  of  law  that  a  surety 
is  entitled  to  a  somewhat  rigid  construction  of  his  contract ;  but 
before  this  rule  is  applied,  his  contract  is  subject  to  the  same 
construction  as  any  other  contract,  in  order  to  ascertain  and  give 
effect  to  the  intent  of  the  parties,  and  it  is  not  until  this  is 
ascertained  that  its  language  is  to  be  regarded  as  strictissimi 
juris.9  When  the  meaning  of  the  language  has  been  thus  ascer- 
tained, the  responsibility  of  the  surety  is  not  to  be  extended  or 
enlarged  by  implication  or  construction,  but  is  strictissimi 
juris.10 

The  surety  is  bound  by  the  contract  which  he  makes,  and  not 
by  some  contract  which  he  did  not  make,  even  though  the  latter 
may  be  more  favorable  to  him  than  the  former.11  Thus,  where 
the  debt  is  paid  in  installments,  if  any  of  the  installments  is  paid 

5  First  Nat.  Bank  v.  Gerke,  68  Md.  449;  Lewis  v.  Dwight,  10  Conn.  95; 
Mason  v.  Pritchard,  12  East,  227;  McDonald  v.  Harris,  75  111.  App.  Ill; 
DeCamp  v.  Bullard,  33  App.  Div.  627. 

"Kroncke  v.  Madsen   (Neb.),  77  N.  W.  Rep.  202. 

7  Bullowa  v.  Orgo   (N.  J.  Ch.),  41  At.  Rep.  494. 

8  Wilson  v.  Webber,  92  Hun,  466;  157  N.  Y.  693. 

0  Belloni  v.  Freeborn,  63  N.  Y.  383;  People  v.  Backus,  117  N.  Y.  196; 
Gamble  v.  Cuneo,  21  App.  Div.  413;  Locke  v.  MeVean,  33  Mich.  473; 
Shreffer  v.  Nadelhoffer,  133  111.  530. 

"People  v.  Backus,   117  N.  Y.   196. 

11  Jackson  v.  Patrick,  10  S.  Car.  197 ;  General  Steam  Nav.  Co.  v.  Roltz, 
6  C.  B.,  N.  S.  550;  Calvert  v.  Dock  Co.,  2  Keen,  638;  Greenville  v.  Ormand, 
51  S.  Car.  121. 


48  SURETYSHIP  AND  GUARANTY.  (Ch.  i 

in  advance,  it  is  held,  the  surety  is  released.12  And  now  terms 
cannot  be  added  to  the  contract  by  reading  the  instrument  in 
connection  with  a  statute.13  He  has  the  right  to  stand  on  the 
very  terms  of  the  contract.14  And  where  the  condition  of  the 
bond  or  contract  is  plainly  set  forth  it  cannot  be  controlled  by 
any  recital  not  plainly  inconsistent  therewith.15 

§  68.  Construction  of  Contract — In  Equity. — Courts  of 
equity,  as  well  as  courts  of  law,  interpret  contracts  of  sureties 
with  considerable  strictness  in  favor  of  the  sureties.16  But  if  the 
liability  cannot  be  enforced  against  the  surety  at  law  by  reason 
of  any  fraud,  accident  or  mistake,  equity  will  enforce  the  con- 
tract according  to  the  obvious  intention  of  the  parties.17 

So  where  the  contract  does  not  express  the  intention  of  the 
parties,  to  the  injury  of  the  obligee,  and  that  is  clearly  made 
to  appear,  equity  will  reform  the  instrument  as  well  against 
surety  as  principal.18 

§  69.  Liability  for  Past  Defaults  of  Principal. — Sure- 
ties are  not  responsible  for  prior  defaults  of  their  principal, 
unless  they  so  contract.19  But  the  guaranty  or  suretyship  may 
cover  a  note  given  for  a  pre-existing  debt.     Thus,   where  a 

"General  Steam  Nav.  Co.  v.  Roltz,  6  C.  B.,  N.  S.  550;  Greenville  v. 
Onnand,  51  S.  Car.  121;  Welch  v.  Hubschmitt  Co.,  61  N.  J.  L.  57. 

"Howard  Co.  v.  Hill,  88  Md.  111. 

"  Warden  v.  Ryan,  37  Mo.  App.  466 ;  Judah  v.  Zimmerman,  22  Ind.  388  ; 
Johnson  v.  May,  76  Ind.  293;  Mayhew  v.  Boyd,  5  Md.  102;  Ryan  v. 
Trustees,  14  111.  20. 

"Australian  Joint  Stock  Bank  v.  Bailey  (1899),  App.  Cas.  396. 

"Miller  v.  Stewart,  9  Wheat.  680. 

"Brooks  v.  Brooks,  12  Gill  &  J.  (Md.)  306;  Berg  v.  Radcliff,  6  Johns. 
Ch.  302. 

"Olmsted  v.  Olmsted,  38  Conn.  309;  United  States  t.  Cushman,  2  Sum- 
ner, 434. 

"  Abrams  v.  Pomeroy,  13  111.  133;  State  v.  Jones,  89  Mo.  470;  Rochester 
v.  Randall,  105  Mass.  295;  Detroit  v.  Weber,  29  Mich.  24;  Van  Sickle  v. 
Buffalo  Co.,  13  Neb.  103;  Kellum  v.  Clark,  97  N.  Y.  390;  Crown  v.  Common- 
wealth, 84  Va.  282;  Stern  v.  People,  96  111.  475;  Rogers  v.  State,  99  Ind. 
218;  Webster  Co.  v.  Hutchinson,  60  Iowa,  721;  Pine  Co.  v.  Willard,  39 
Minn.  125;  American  Dist.  Tel.  Co.  v.  Lennig,  139  Pa.  St.  594;  Newcomer 
v.  State,  77  Tex.  286. 


§  70)  scope  of  surety's  liability.  49 

contract  of  guaranty  provides  for  the  payment  of  all  notes  dis- 
counted by  a  bank  "from  the  date"  thereof,  a  note  discounted 
by  the  bank  after  such  date  is  covered  by  the  guaranty,  although 
it  is  given  to  cancel  a  note  given  to  the  bank  before  the  contract 
was  made.20  And  so  sureties  are  liable  for  money  paid  their 
principal,  though  he  misapplies  it  to  pay  prior  delinquencies 
covered  by  another  bond  with  other  sureties.21 

And  a  contract  of  suretyship  may  act  retrospectively  where 
the  parties  so  agree,  because  then  it  is  the  contract  of  the 
surety.22 

§  70.  Liability  Limited  to  a  Fixed  Time. — A  surety  is  not 
to  be  held  beyond  the  precise  term  of  his  contract.  So  where 
the  principal  is  in  office  for  a  definite  period,  the  surety  is  only 
liable  for  his  faithful  performance  of  his  duties  during  that 
period.  If  the  bond  is  silent  as  to  the  length  of  the  term,  but 
the  statute  under  which  the  bond  is  given  fixes  the  term,  the 
statute  in  that  regard  will  be  regarded  as  the  period  of  the  con- 
tract with  the  surety.  In  such  case  the  sureties  do  not  contract 
for  their  principal's  discharge  of  obligations  which  he  might 
assume  or  duties  which  might  be  imposed  upon  him  after  he 
leaves  office.23 

The  general  rule  as  touching  the  extent  of  the  obligation  of 
the  surety  on  official  bonds  is,  that  the  obligation  by  intendment 
will  be  confined  to  the  official  term  about  the  commencement  or 
current  at  the  time  such  bond  comes  into  existence,  and  when  the 
office  is  annual  the  parties  to  the  bond  are  presumed,  by  law,  to 
bind  themselves  accordingly,  if  there  are  no  words  in  the  bond 
clearly  extending  it  to  a  future  term.24 

"Peoria  Savings,  etc.,  Co.  v.  Elder,  165  111.  55. 

"Gwynne  v.  Burnell,  7  CI.  &  F.  572;  Inhabitants  v.  Bell,  9  Met.  490; 
Pine  Co.  v.  Willard,  39  Minn.  125. 

*  Abrams  v.  Pomeroy,   13  111.  133. 

23  Ulster  Co.  Saw  Bank  v.  Ostrander  (N.  Y.),  57  N.  E.  Rep.  627;  Bryan 
V.  United  States,  1  Black,  140;  United  States  v.  Nicholl,  12  Wheat.  505; 
People  v.  Toomey,  122  111.  308:  Lord  Arlington  v.  Merricke,  3  Saund.  403; 
People  v.  Pennock,  60  N.  Y.  421. 

"  Chelmsford  Co.  v.  Demarest,  7  Gray,  1 ;  Mayor  v.  Crowell,  40  N.  J.  L. 

4 


50  SUKETYSHIP  AND  GUAKANTY.  (Ch.  4: 

But  when  the  bond  provides  that  the  officer  is  to  be  chosen 
annually  and  holds  his  office  until  another  is  chosen  and  qualified 
in  his  stead,  the  sureties  are  bound  only  for  the  year  for  which 
he  was  chosen,  and  for  such  further  time  as  is  reasonably  suffi- 
cient for  the  election  and  qualification  of  his  successor,  but  not 
longer.25  When  a  bond  is  conditioned  for  the  faithful  perform- 
ance of  the  principal's  duties  "  during  his  continuance  in  office," 
without  specifying  the  length  of  time,  the  surety  is  liable  for 
one  year  only,  the  term  of  the  principal  being  limited  to  that 
time.26  And  in  general  a  surety  cannot  be  held  on  an  official 
bond  for  a  longer  period  than  that  limited  by  his  undertaking.27 

§  71.  Time  Limited  to  a  Subsequent  Period. — To  enlarge 
the  responsbility  of  sureties  in  a  bond  or  in  any  other  contract, 
there  must  be  words  in  the  condition  extending  the  time  beyond 
the  fixed  term  of  office.  It  is  not  enough  that  the  recitals  should 
be  "  so  long  as  he  continue  in  office,"  or  "  until  a  successor  is 
appointed."  If  the  office  is  annual  or  limited  the  surety  will 
not  be  prejudiced  by  a  failure  to  bind  according  to  the  require- 
ments of  the  law  or  rule  which  regulates  such  appointment.  His 
intention  to  assume  a  further  and  continued  liability  must  be 
found  in  the  words  of  the  bond.  It  is  not  a  matter  of  inference, 
but  of  exposition.28  Thus,  a  surety's  liability  is  extended  by  the 
following  language :  "During  the  time  he  shall  continue  in  the 
said  office,  whether  of  the  present  term  for  which  he  has  been 
duly  elected,  or  of  any  succeeding  term  to  or  for  which  he  may 
be  elected."29 

207;  Dover  v.  Twombly,  42  N.  H.  59;  Welch  v.  Seymour,  28  Conn.  387; 
May  v.  Horn,  2  Harr.   (Del.)   190. 

n  Chelmsford   Co.  v.   Demarest,  7   Gray, 

"Kitou  v.  Julian,  4  El.  &  B.  854. 

"Mullikin  v.  State,  7  Blackf.  77;  Urmston  v.  State,  73  Ind.  175;  Riddel 
v.  School  Dist.,  15  Kan.  168;  Savings  Bank  v.  Hunt,  72  Mo.  597;  Noridge- 
wock  v.  Hale,  80  Me.  362;  Scott  Co.  v.  Ring,  29  Minn.  398;  Kellum  v. 
Clark,  07  \".  Y.  300:  Barry  v.  Association.  67  Tex.  250;  Roper  v.  Sanga- 
mon Lodge,  01  111.  518;  Myers  v.  Farmer,  52  Iowa,  20;  Black  v.  Oblender, 
135   Pa.  St.  526. 

"Angero  v.  Keen,  1  Mees.  &  W.  H00;  Oswald  v.  Berwick,  1  El.  &  B.  295; 
S  El.  &  B.  653;  5  II.  L.  Cas.  *r,fl. 

»  People's  Build.  Asso.  v.  Wroth,  43  N.  J.  L.  70. 


§  72)  scope  of  surety's  liability.  51 

If  the  bond  is  drawn  so  as  to  cover  subsequent  periods,  the 
sureties  are  bound.30 

§  72.  Employment  or  Condition  Changed  by  Employer 
or  by  the  Legislature. — If  by  act  of  the  parties  or  by  act  of 
the  legislature,  the  nature  of  the  office  is  so  changed  that  the 
duties  are  materially  altered  so  as  to  affect  the  liability  of  the 
sureties,  their  responsibility  is  ended.  If  the  nature  and  the 
functions  of  the  office  or  employment  are  changed,  then  it  is  not 
the  same  office  within  the  meaning  of  the  bond.31  Hence,  if  the 
nature  of  the  employment  is  so  changed  by  the  act  of  the  em- 
ployer that  the  risk  of  the  surety  is  materially  altered,  the 
surety's  liability  ceases.32  So  the  increase  of  the  principal's 
salary  on  re-employment  relieves  the  surety  for  all  subsequent 
defaults.33  And  so,  where  a  bank  increases  its  capital  stock  and 
it  is  paid  in,  then  the  surety  on  the  bond  of  the  cashier  is  no 
longer  liable  for  subsequent  defaults  of  his  principal.34  Like- 
wise the  sureties  on  a  cashier's  bond  of  an  unincorporated  bank 
are  released  from  liability  if  the  company  becomes  incor- 
porated.35 

It  has  been  held  that  extending  the  charter  of  a  bank  by  the 
legislature  ends  the  surety's  liability  on  the  bond  of  the  cashier, 
though  his  duties  are  identical  with  those  before  extension,36  but 
such  doctrine  is  doubtful,37  and  cannot  be  applied  where  the 

30  Board  v.  Pabst,  70  Wis.  352 ;  Lang  v.  Seay,  72  Mo.  648 ;  Fox  v.  McCord, 
54  Iowa,  346;  Daley  v.  Commonwealth,  75  Pa.  St.  331;  Dedham  Bank  v. 
Chickering,  3  Pick.  335;  Jacobs  v.  Hill,  2  Leigh,  393;  Mayor  v.  Wright, 
16  Q.  B.  63. 

"Pybus  v.  Gibb,  6  El.  &  Bl.  902;  Manufacturers'  Bank  v.  Dickerson,  41 
N.  J.  L.  448;  Mumford  v.  Railroad  Co.,  2  Lea,  393. 

32  Miller  v.  Stewart,  9  Wheat.  680 ;  First  Nat.  Bank  v.  Gerke,  68  Md.  449. 

33Bamford   v.   lies,   3   Exch.   380. 

34  Grocers'  Bank  v.  Kingman,  16  Gray,  473.  Compare  Morris  Canal  Co. 
v.  Van  Vorst,  21  N.  J.  L.  100;  Bank  v.  Wollaston,  3  Harr.  (Del.)  90;  Lion- 
berger  v.  Kieger,  88  Mo.  160. 

^Besinger  v.  Wren,  100  Pa.  St.  500. 

88  Thompson  v.  Young,  2  Ohio.  334;  Union  Bank  v.  Ridjrely.  1  H.  &  G. 
324;  Bank  v.  Barrington.  2  Pa.  27:  Brown  v.  Lattimore,  17  Cal.  93. 

,T  Exeter  Bank  v.  Rogers,  7  N.  H.  21. 


52  SURETYSHIP  AND  GUAEAXTT.  Ch.  -i 

statute  provided  for  such  extension  or  other  change  when  the 
surety  signed.38 

If  the  nature  of  the  principal's  duty  is  unchanged,  and  new 
or  different  duty  is  imposed  upon  him  by  the  alteration  in  the 
regulation  of  his  employer,  the  surety  is  still  liable.  Thus,  a 
railroad  company  may  raise  a  station  to  one  of  first-class,  and 
this  will  not  release  the  surety  on  the  station  agent's  bond,  where 
the  agent  has  the  identical  duties  as  before  the  change  of  the 
-      Lou's    re-classification. 

§  73.  Sureties  ra  Legal  Proceedings — Oedee  of  Lia- 
bility.— As  between  different  sets  of  sureties  who  undertake 
to  secure  the  same  debt,  although  in  different  stages  of  legal 
proceedings,  the  primary  liability  rests  upon  the  latter  set.40 
Thus,  a  surety  in  an  injunction  bond  enjoining  a  judgment 
against  the  acceptor  of  a  bill  of  exchange,  has  no  right  to  call 
upon  the  indorsers  of  the  bill  for  indemnity  for  such  payment; 
they  are  not  his  principals  or  co-sureties,  nor  has  he  any  right 
to  be  substituted  to  the  right  which  the  payee  once  had  against 
indorsers  for  payment  of  the  bill.41 

Bail  are  sureties  and  entitled  to  the  benefit  of  the  general 
principle  applicable  to  the  relation  which  they  bear  toward  their 
principal  and  his  creditoi  as  well  as  toward  other  sets  of  sure- 
ties.42 In  other  words,  bail  have  the  same  rights  as  other  sure- 
ties consistent  with  their  duties. 

74.  Oxly  Liaele  foe  Pexalty  of  the  Boxd. — The  gen- 
eral principle  is  that  in  suits  on  penal  bonds  with  collateral 
Limitations,  the  surety  is  liable  only  for  the  penalty.43 

"People  v.  Backus.  117  X.  Y   106:  National  Bank  v  Phelps.  97  X.  Y.  44. 

trawbridge  v  Railroad  Co..  14  Ma.  360. 
"Hinckley  v.  Kreitz,  58  X.   \     583;   Culliford,  v.  Walsei.   15S  X.  Y.  65; 
-  Briddoek.   2   Yern.   603 ;    Burns   v.    Bank.   1    Pa.   395 ;    Pott   v. 

Nathan,  1  W.  i  B.  155;  McCorruiek  v.  Irwin.  35  Pa.  St.  Ill;  Brandenburg 
v.  Flynn.  12  B.  Mon. 

annon  v.  Combe,  12  B.  Mon.  563. 
"(.'uiliford  v    W'aisei.  15S  X.  Y.  05.     See  see.  2i3  et  seq. 

rear  v.  United  Stafa  -    I    Pi  •       "  I;   Show-lies  v.  Freeman    SI  Mo.  540; 
Greater  v.  DeWolf,  112  Ind.   1;   Fraser  \.  Little,   13  Mich    195:   Farlie  v. 


§  75, 76)  scope  of  surety's  liability.  53 

The  undertaking  of  the  surety  is  essentially  a  pledge  to  make 
good  the  misfeasance  or  non-feasance  of  his  principal  to  the 
amount  co-extensive  with  the  penalty  of  the  bond.44  But  the 
surety  is  liable  for  the  legal  interest  which  has  accrued  from  the 
time  of  his  liability,  besides  the  penalty.45 

§  75.  Misappropriation  of  Funds. — Where  the  principal  is 
bound  for  the  faithful  performance  of  his  duties,  the  contract 
will  fix  the  measure  of  the  surety's  liability ;  and  he  will  not  be 
liable  for  defaults  of  his  principal  to  perform  any  duty  or 
obligation  arising  out  of  a  contract  or  otherwise  not  fairly  within 
the  provision  of  the  written  contract  or  bond  so  given  to  secure. 
Thus,  sureties  are  not  liable  on  a  bond  for  any  moneys  advanced 
to  their  principal  to  enable  him  to  prosecute  his  business  for  the 
obligee,  when  such  obligation  was  not  set  out  in  the  bond,  though 
they  are  liable  for  moneys  received  by  the  principal  in  his  line 
of  duty.46  So  where  a  bond  is  given  by  an  overseer  of  the  poor, 
in  which  the  principal  was  to  account  for  all  sums  of  money 
which  came  to  his  hands  by  virtue  of  his  office,  the  sureties  are 
not  liable  for  moneys  which  he  borrows  without  authority  and 
applies  to  other  purposes  not  within  the  scope  of  his  business.47 

Sureties  are  not  liable  for  funds  of  their  principal  which  he 
misappropriates,  unless  such  moneys  are  designated  by  their 
contract  of  suretyship.48 

§  76.  Increase  of  Funds. — Where  the  fund  is  increased 
within  the  legal  purview  of  the  contract,  the  surety  is  liable  for 

Lawson,  5  Cow.  424:  Clark  v.  Bush,  3  Cow.  151;  Wood  v.  Tish,  63  N.  Y. 
245;  Delo  v.  Banks.  101  Pa.  St.  458;  Stull  v.  Lee,  70  Iowa,  31. 

"Leggett  v.  Humphrey,  21  How.  66. 

"Holmes  v.  Standard  Oil  Co.,  183  111.  70;  James  v.  State,  65  Ark.  415; 
Wyman  v.  Robinson,  73  Me.  384;  Whereatt  v.  Ellis,  103  Wis.  348. 

46  Burlington  Ins.  Co.  v.  Johnson,  120  111.  622. 

"Leigh  v.  Taylor,  7  B.  &  C.  491. 

48  Humboldt,  etc.,  Society  v.  Wennerhold,  81  Cal.  528;  Commonwealth  v. 
Toms,  45  Pa.  St.  408;  Nolley  v.  County  Court,  11  Mo.  447;  Smith  v. 
Stephen,  53  Ga.  300;  Sutherland  v.  Carr,  85  N.  Y.  105;  Urmston  v.  State, 
73  Ind.  1?5;  Atterstein  v.  Alpaugh,  9  Neb.  237;  Linch  v.  Litchfield,  16 
111.  App.  612.  I 


51  SURETYSHIP  AND  GUABANTY.  (Ch.  4 

his  principal's  misappropriation  of  such  increase.  Thus,  where 
the  principal  receives  interest  on  the  fund  in  the  hands  of  his 
depositary,  his  surety  is  liable  for  default  in  paying  over  that 
interest  to  the  obligee.49  And  so  where  the  State  by  appropriate 
legislation  increases  the  funds  in  the  hands  of  the  principal,  the 
surety's  liability  is  not  thereby  released;50  and  interest  will  be 
charged  from  the  date  of  conversion,  for  which  the  sureties  will 
be  liable.51  And  so  the  surety  will  be  liable  for  liquidated  dam- 
ages.52 And  indefinite  suretyship  extends  to  all  the  accessories 
of  the  principal's  obligation,  such  as  costs  and  the  like.53  Un- 
less the  surety  limits  his  liability  in  the  contract,  such  accessories 
are  within  the  meaning  of  the  contract  of  principal  and  surety. 

§  77.  Sueety  May  Limit  His  Liability. — "Where  the  surety 
states  the  amount  for  which  he  will  be  liable,  properly  incor- 
porated in  the  contract,  that  amount  fixes  the  extent  of  his  lia- 
bility.54 So  if  the  sum  is  increased  beyond  the  amount  as  set 
forth  in  the  contract  for  which  the  surety  binds  himself  to  pay, 
the  excess  cannot  be  collected  from  the  surety,55  for  the  surety 
cannot  be  bound  beyond  the  scope  of  his  engagement;56  he  is 
bound  to  the  extent  of  his  agreement,  and  only  by  reason  of  such 
agreement.67 

§  78.  Foeged  Signatures. — Forgery  does  not  always  re- 
lease the  liability  of  a  surety.  Thus,  when  the  name  of  one 
or  more  obligors  in  a  bond  or  note  or  other  writing  obligatory 

*'  Hunt  v.  State,  124  Ind.  306;  Comstock  v.  Gage,  91  111.  328. 

60  People  v.  Backus,  117  N.  Y.  196. 

81  Curtis  v.  United  States,  100  U.  S.  119;  Cassady  v.  Trustees,  105  111.  560. 

"Gridley  v.  Capen,  72  111.  11. 

"Lafayette,  etc.,  Asso.  v.  Kleinhoff,  40  Mo.  App.  388;  Woolley  v.  Van 
"Valkenburgh,  16  Kan.   20. 

"  Bullowa  v.  Orgo,  57  X.  .1.  Eq.  428. 

"Finney  v.  Condon,  8b  111.  78;  Farmers',  etc.  Bank  v.  Evans,  4  Barb. 
487;  Bragg  v.  Shaw,  49  Cal.  131 ;  Kimball  v.  Baker,  62  Wis.  526. 

M  Parker  v.  Wise,  6  Maule  &  S.  239. 

"  Ludloy  v  Simond,  2  Caine's  Cas.  29;  Smith  v.  Lockwood,  34  Wis.  77; 
Houck  v  Graham,  L23  End.  277;  Doud  v.  Walker,  48  Iowa,  634;  Stetson  v. 
Bank,  12  Ohio  St.  677;  Gay  v.  Hultz,  56  Mich.  153;  Bank  v.  Smith,  12 
Allen,  243;  Ellesmere  Brewing  Co,  v.  Cooper  (1896),  1  Q.  B.  75. 


§  79)  scope  of  surety's  liability.  55 

has  been  forged,  the  surety,  though  he  signed  in  the  belief  that 
the  forged  name  was  genuine,  is  nevertheless  bound  if  the  payee 
or  obligee  accepted  the  instrument  without  notice  and  for 
value.58  The  surety's  liability  is  not  changed,  though  two 
names  or  more  of  the  principals  are  forged,  the  fact  being  un- 
known to  the  surety  and  holder  when  delivered.59  And  where 
one  surety,  a  married  woman,  is  released  on  account  of  cover- 
ture, this  does  not  discharge  the  other  surety.60 

§  79.  Additional  Employment. — If  the  office  held  by  the 
principal  is  altered  by  addition  of  new  duties,  the  surety  is  no 
longer  liable ;  but  when  the  principal  is  appointed  to  a  new  office, 
the  surety  is  still  liable  for  defaults  connected  with  the  old 
office.61  Where  the  omissions  of  the  principal  to  perform  his 
duties  is  wholly  disconnected  from  improper  acts  on  his  part  in 
the  new  business,  and  is  not  superinduced  by  his  new  appoint- 
ment, the  surety  is  still  liable.62  But  the  liability  of  the  surety 
cannot  be  extended  to  embrace  other  undertakings  not  specific- 
ally covered  by  his  bond.63  So  where  the  liability  of  the  surety 
is  limited  to  the  transactions  and  defaults  of  a  principal,  he  can- 
not be  made  liable  for  defalcations  and  omissions  of  another 
principal,  who  joins  the  first  in  the  business  ;64  because  where  a 
surety  agrees  to  answer  for  the  defaults  of  a  principal,  he  does 
not  thereby  agree  to  answer  for  the  defaults  of  a  firm  of  which 
his  principal  may  become  a  partner.65 

58  Veazie  v.  Willis,  6  Gray,  90;  Stoner  v.  Milliken,  85  111.  218;  Wheeler  v. 
Bank  (Ky.),  55  S.  W.  Rep.  552;  Helms  v.  Society,  73  lnd.  325;  Lombard 
v.  Mayberry,  24  Neb.  674  Compare  Southern  Cotton  Oil  Co.  v.  Bass 
(Ala.),  28  South.  Rep.  576. 

89  Chase  v.  Hathorn,  61  Me.  505. 

80  Warren  v.  Tobacco  Exchange  (Ky.),  55  S.  W.  Rep.  912. 

81  Skillett  v.  Fletcher,  L.  R.  2  C.  P.  469. 
"Home  Savings  Bank  v.  Traube,  75  Mo.  199. 

""Kellogg  v.  Scott  (N.  J.),  44  At.  Rep.  190;  Noyes  v.  Granger,  51 
Iowa,  227. 

"White  Sewing  Mach.  Co.  v.  Hines,  61  Mich.  423. 

85  Billairs  v.  Ebsworth,  3  Camp.  52 ;  Dry  v.  Davy,  10  Ad.  &  El.  30 ;  Palmer 
v.  Bagg,  56  N.  Y.  523;  Parham  Sewing  Mach.  Co.  v.  Brock,  113  Mass.  194; 
Dobbins  v.  Bradley,  15  Wend   422. 


56  SURETYSHIP  AND  GUARANTY.  (Ch.  4 

So  as  a  general  rule,  in  the  absence  of  legislation,  or  by  ex- 
press agreement,  there  is  no  liability  on  the  part  of  a  contractor 
to  respond  to  parties  employed  by  a  sub-contractor,66  and  so  the 
sureties  of  the  contractor  are  not  liable  to  such  employees.67 

§  80.  Act  of  Principal  jSTot  in  Line  of  His  Business. — 
A  surety  will  not,  in  general,  be  relieved  from  responsibility 
because  the  act  of  the  principal  which  occasioned  the  loss  was 
not  strictly  in  the  line  of  his  duties  of  his  office,  or  was  done  in 
the  course  of  temporary  or  casual  performance  of  other  duties 
at  the  request  of  his  employer.68  Nor  will  the  imposition  of  ad- 
ditional, distinct  and  consistent  duties  upon  the  principal,  or 
his  appointment  to  an  additional  office,  his  original  office  being 
retained,  necessarily  relieve  the  surety  from  his  obligation,  if 
the  new  duties  or  the  new  office  have  no  such  connection  with 
the  old  as  to  interfere  with  or  affect  the  original  employment. 69 
But  if  the  principal  is  promoted  and  such  promotion  involves  a 
material  alteration  of  the  principal's  duties,  this  will  increase 
the  peril  of  the  surety  and  relieve  him  from  his  bond.70  And 
in  general,  the  liability  of  a  surety  on  an  official  bond  cannot 
without  his  consent  be  extended  or  enlarged  by  the  obligee  or  by 
operation  of  law.71 

§  81.  Becoming  Surety  for  Payment  of  Rent. — A  party, 
as  in  other  contracts  of  suretyship  and  guaranty,  may  become  a 
surety  to  the  payment  of  rent.  And  where  rent  is  payable  in 
installments  and  the  landlord  releases  the  tenant  as  to  payment 
of  installments  due  or  past  due,  it  will  not  relieve  the  surety  of 
the  tenant  from  liability  as  to  subseouent  installments;72  because 

69  Wells  v.  Williams,  39  Barb.  567. 

"Faurote  v.  State,  110  Ind.  463. 

M  German  Bank  v.  Auth,  87  Pa.  St.  419;  Detroit  Bank  v.  Zeigler,  49  Mich. 
157;  Rochester  Bank  v.  Elvvood,  21  N.  Y.  88. 

"American  Tel.  Co.  v.  Lennig,  139  Pa.  St.  595;  Mayor  v.  Kelly,  98 
N.   Y.    468. 

,0  Manufacturers'  Bank  v.  Dickerson,  41  N.  J.  L.  448. 

71  Besinger  v.  Wren,  100  Pa.  St.  500;  Miller  v.  Stevens,  9  Wheat.  680; 
Smith  v.  United  States,  2  Wall.  219;  Singer  Machine  Co.  v.  Hebbs,  21 
Mo.  App.  574. 

"Kingsbury  v.  Williams.  53  Barb.  142;  Ducker  v.  Rapp,  67  N.  Y.  464; 
Coe  v.  Cassidy,  72  N.  Y.  133. 


§  82,  83)  scope  of  surety's  liability.  57 

each  installment  is  a  separate  and  independent  demand,  and  so 
the  extension  of  the  time  of  payment,  or  release  of  payment,  will 
not  impair  the  obligation  of  the  surety  as  to  the  others.73 

§  82.  Tenant  Holding  Over. — The  surety  may  become 
liable,  if  the  contract  so  expresses  the  intention  of  the  parties, 
for  rent  where  the  tenant  holds  over.74  But  if  the  lease  does  not 
provide  that  the  surety  shall  be  liable  for  a  second  term  or  for 
rent  in  case  the  tenant  holds  over,  the  surety  is  liable  only  for 
the  term  stated  in  the  lease,  for  it  cannot  be  implied  that  the 
surety  agreed  to  such  extension.75 

If  the  lease  is  defective,  but  the  tenant  enters  upon  the  prem- 
ises, then  the  surety  is  liable.76  And  a  guarantor  of  the  pay- 
ment of  rent  is  not  discharged  from  liability  for  rent  past  due, 
by  a  surrender  of  the  lease,  and  of  rent  thereafter  to  accrue, 
without  his  knowledge  or  consent.  Nor  is  he  released  by  the 
destruction  of  the  building  by  fire  as  to  rent  thereafter  accru- 
ing.77 And  when  the  rent  is  specifically  guaranteed  to  the  land- 
lord, he  cannot  transfer  a  legal  title  to  the  guaranty  to  his 
assignee  of  the  lease,78  because  a  special  guaranty  cannot  be 
assigned,  as  it  is  limited  to  the  person  to  whom  it  is  addressed, 
and  usually  contemplates  a  trust  or  reposes  a  confidence  in  such 
person.  Such  a  guaranty  may  not  be  assigned  until  the  right  of 
action  has  accrued.79  But  one  who  purchases  a  note  which  is 
guarantied  generally,  is  entitled  to  the  benefit  of  such  general 
guaranty,80  though  he  buys  in  ignorance  of  such  guaranty.81 

§  83.  Principal  Associating  With  Others. — A  surety  for 
a  principal  cannot  be  made  liable  for  default  if  other  parties 

"Ducker  v.   Rapp,  67  N.  Y.  464. 

74  Dufau  v.  Wright.  25  Wend.  636 ;  Deblois  v.  Earle,  7  R.  I.  26 ;  Rice  v. 
Loomis,  139  Mass.  302. 

"Brewer  v.  Thorp,  36  Ala.  9. 

76  Clark  v.  Gordon,   121  Mass.   330. 

"Kingsbury  v.  Westgate,  61   N.  Y.  336. 

78    Potter  v.  Groubeck,  117  111.  404. 

78  Jex  v.  Straus,  122  N.  Y.  293. 

80  Ellsworth  v.  Harmon,  101  111.  274;  Claflin  v.  Ostrorr    54  N.  Y.  581. 

S1  Tidioute  Savings  Bank  v.  Libbey,  101  Wis.  193. 


58  SUKETYSHIP  AND  GUARANTY.  (Ch.  4 

become  associated  with  bis  principal  in  business.  Thus,  where 
the  principal  enters  a  partnership  the  surety  is  not  liable  for  the 
partnership  defaults,  because  it  is  a  material  change  as  to  his 
liability.  And  conversely,  where  the  principal  takes  another  per- 
son into  his  business,  his  surety  is  no  longer  liable.  Taking  a 
partner  is  a  violation  of  the  contract  with  the  surety ;  he  engages 
as  surety  for  the  conduct  of  one  man,  and  to  bring  two  or  more 
principals  into  the  business  would  be  a  violation  of  his  con- 
tract.82 So  a  guaranty  of  the  payment  of  goods  supplied  to  two 
parties  is  made  invalid  when  one  partner  goes  out  of  business 
with  the  consent  of  his  copartner  and  the  vendor.83 

§  84.  Several  Principals — Partnership. — If  a  party 
engages  as  surety  to  several  individuals,  his  obligation  does  not 
extend  beyond  the  death  or  retirement  of  any  of  them  for  whom 
he  has  engaged  to  be  answerable.  This  rule  applies  as  well  to 
parties  to  whom  the  surety  is  bound,  the  obligee,  as  to  those  for 
whom  he  is  bound,  the  obligors.84 

In  the  nature  of  things  there  cannot  be  a  partnership  consist- 
ing of  several  persons,  in  which  there  are  not  some  possessed  of 
greater  business  capacity  than  the  others,  and  it  may  be  that  a 
partner  dying  or  going  out  of  the  firm  may  be  the  very  one  on 
whom  the  surety  himself  relies;  it  would  be,  therefore,  very 
unreasonable  to  hold  the  surety  to  the  contract  after  such 
change.85  The  only  exceptions  to  this  rule  are:  (1)  Where 
the  nature  of  the  obligation  expressly  limits  the  liability  or 
extends  it  to  the  survivors,  whether  associated  together  or  other- 
wise.     (2)  Where  the  parties  for  or  to  whom  the  sureties  are 

82  Mathews  v.  Carman,  110  Mich.  559;  London  Assurance  Corporation  v. 
Bold,  6  A.  &  E.  523 ;  Bellaire  v.  Ebsworth,  3  Camp.  55 ;  Parham  Sew.  Mach. 
Co.  v.  Brock,  113  Mass.  197;  Connecticut  M.  L.  Ins.  Co.  v.  Scott,  81  Ky. 
540;  White  Sewing  Mach.  Co.  v.  Hines,  61  Mich.  423;  Montefiore  v.  Lloyd, 
i:»  C  B.,  N.  8.  203. 

"  Bill  v.  Barker,  16  Gray,  62. 

84  University  of  Cambridge  v.  Baldwin,  5  Mees.  &  W.  585 ;  Simpson  v. 
Cook,  1  Bing.  452 ;  Myers  v.  Edge,  7  T.  R.  254 ;  Strange  v.  Lee,  3  East,  484 ; 
We  ton  v.  Barton,  4  Taunt.  673;  Penoyer  v.  Watson,  11  Johns.  100:  Smith 
•  .  Montgomery,,  :*  Ter.  203 j  Hlair  v.  Ins.  Co.,  10  Mo.  559;  State  v.  Boon," 
44  Mo.  25  l 

M  Weston  v.  Barton,  4  Taunt.  673. 


§  85,  86)  scope  of  surety's  liability.  59 

bound,  are  described  as  a  class,  company,  bank,  or  the  like,  and 
not  to  the  members  or  partners  nominatim,  so  as  plainly  to 
imply  that  the  security  is  given  to  or  for  the  class  or  body  as 
such,  regardless  of  changes  in  the  integral  parties.86 

§  85.  Death  of  Surety. — The  death  of  the  surety  does  not 
ordinarily  terminate  his  contract  when  it  is  a  continuing  one. 
In  such  case  if  defaults  occur  after  his  death  his  estate  is  liable 
for  the  default  of  the  principal.  Thus,  where  a  bond  is  given 
binding  the  surety,  "  his  heirs,  executors  and  administrators," 
the  liability  of  the  surety  is  not  terminated  by  his  death,  but 
extends  to  his  estate.87  So  a  continuing  surertyship  is  not 
terminated  by  the  death  of  the  surety  as  to  moneys  and  property 
of  the  obligee,  in  the  line  of  the  business,  that  may  come  into 
the  hands  of  his  principal  after  his  death;  upon  default  of  the 
principal  the  obligee  has  recourse  to  his  estate.88  So  the  liabil- 
ity of  a  surety  on  an  official  bond  during  the  continuance  of  the 
principal's  term  of  office,  extends  as  well  to  definite  defaults 
committed  after  as  before  the  death  of  the  surety.89  Whenever 
the  undertaking  of  the  surety  is  for  a  definite  period,  as  for  the 
officer's  conduct  during  his  term  of  office,  or  for  the  repayment 
of  advances  made  to  the  principal  in  the  bond,  until  notice  is 
given  the  obligee  that  the  liability  is  terminated,  the  estate  of 
the  surety  in  the  hands  of  his  administrator  or  executor  is 
answerable  for  any  defaults  of  the  principal  occurring  after 
his  death ;  this  is  especially  so  where  the  surety  binds  his  "  heirs, 
executors  and  administrators  "  for  the  performance  of  his  under- 
taking.90 

§  86.  Construing  a  Joint  Obligation  as  Several. — A 
court  will  not  vary  the  legal  effect  of  the  instrument  by  making 

88  Barclay  v.  Lucas,  1  Term  R.  291;  Gorgan  v.  School  Dist.,  4  Colo.  53. 

87  Royal  Life  Ins.  Co.  v.  Davis,  40  Iowa,  499 ;  Gordon  v.  Calvert,  4 
Russ.  581. 

■"Rapp  v.  Ins.  Co.,  113  111.  390. 

89  Green  v.  Young,  8  Me.  14. 

"Moore  v.  Wallis,  18  Ala.  458;  Hightown  v.  Moore,  46  Ala.  387;  Mow- 
bray v.  State,  88  Ind.  327. 


60  SURETYSHIP  AND  GUARANTY.  (Ch.  4 

it  several  as  well  as  joint  unless  it  can  see  either  by  independ- 
ent testimony  or  from  the  nature  of  the  transaction  itself,  that 
the  parties  concerned  intended  to  create  a  separate  as  well  as  a 
joint  liability.  If  from  fraud,  ignorance  or  mistake,  the  joint 
obligation  does  not  express  the  meaning  of  the  parties,  it  will  be 
reformed  so  as  to  conform  to  it.  This  has  been  done  where 
there  is  a  previous  equity  which  gives  the  obligee  the  right  to 
several  indemnity  from  each  of  the  obligors,  as  in  the  case  of 
money  lent  to  both  of  them.  In  such  case  a  court  of  equity  will 
enforce  the  obligation  against  the  representatives  of  the  deceased 
obligor,  although  the  bond  be  joint  and  not  several,  on  the  ground 
that  the  lending  to  both  creates  a  moral  obligation  in  both  to 
pay,  and  that  the  reasonable  presumption  is  the  parties  intended 
their  contract  to  be  joint  and  several,  but  through  fraud,  ignor- 
ance, mistake  or  want  of  skill,  they  failed  to  accomplish  their 
object.91  This  presumption  is  never  made  in  the  case  of  a  mere 
surety,  whose  duty  is  measured  alone  by  the  legal  force  of  the 
bond,  who  is  under  no  moral  obligation  whatever  to  pay  the 
obligee  independent  of  his  covenant,  and  consequently  there  is 
nothing  on  which  to  found  an  equity  for  the  interposition  of  a 
court  of  chancery.  If  the  surety  should  die  before  his  principal 
his  representatives  cannot  be  sued  at  all  on  the  joint  obligation ; 
nor  will  they  be  charged  in  equity.92 

It  is  the  rule  that,  in  case  of  joint  obligation  of  sureties,  if 
one  of  the  joint  obligors  die,  his  representatives  are  discharged 
and  the  survivors  alone  can  be  sued ;  but  where  the  joint  obligors 
are  two  principal  debtors  who  received  some  benefit  from  the 
joint  obligation,  courts  of  equity  have  taken  jurisdiction  in  case 
of  the  death  of  one  of  the  obligors  and  enforced  the  obligation 
against  his  representatives.     Because  in  conscience  the  estate  of 

"Richardson  v.  Draper,  87  N.  Y.  337;  Powell  v.  Kettelle,  1  Gil.  (111.) 
49;   Baskin  v.  Andrews,  53  Hun,  95. 

82  United  States  v.  Price,  9  How.  90;  1  Wall.  Jr.,  173;  Waters  v.  Riley,  2 
Harris  &  G.  311;  Bradley  v.  Burwell,  3  Denio,  65;  Weaver  v.  Shyrock,  6 
Berg.  &  It.  2(i2;  Pickersgill  v.  Lahens,  15  Wall.  140.  In  some  States  tha 
obligation  of  the  surety  survives  his  death,  and  his  estate  is  bound,  con- 
trolled by  statute.    Redmon  v.  Marvel,  73  Ind.  593;  Miss.  Code,  2353. 


§  87)  scope  of  surety's  liability.  61 

the  deceased  obligor  ought  to  respond  to  the  obligation.93  But 
the  mere  joint  obligation  of  a  deceased  principal  is  not  suffi- 
cient to  create  an  equity  against  his  estate.  His  estate  cannot 
be  pursued  in  equity  unless  there  is  some  moral  obligation  ante- 
cedent to  the  bond.  But  such  obligation  cannot  exist  where  the 
deceased  is  a  mere  surety 


94 


§  87.  Revoking  Suretyship. — It  has  already  been  shown 
when  death  of  surety  revokes  his  liability.  The  general  rule  is 
a  surety  or  guarantor  cannot  relieve  himself  of  future  liability 
by  serving  notice  on  the  obligee  in  the  absence  of  a  stipulation 
in  the  contract  to  that  effect.  Thus,  where  a  surety  becomes 
liable  for  the  rent  of  premises  for  a  time  certain,  the  mere  notice 
by  him  that  he  will  not  be  liable  further  has  no  effect  upon  his 
contract;  he  cannot  dissolve  his  contract  at  pleasure.95  If  a 
surety  desires  to  terminate  his  liability  by  notice,  he  must  so 
specify  in  his  contract.96 

In  the  case  of  a  simple  guaranty  for  a  proposed  loan,  the  right 
of  revocation  exists  before  the  proposal  has  been  acted  upon. 
The  promise  to  guarantee  for  a  time  definite  creates  no  addi- 
tional liability  on  the  guarantor,  but,  on  the  contrary,  fixes  the 
limit  in  time  beyond  which  his  liability  cannot  extend.  So  such 
a  guaranty  to  secure  money  to  be  advanced  to  a  third  party  on 
discount  to  a  certain  amount  for  such  time  is  revocable  within 
that  time.97 

A  mere  offer  to  guarantee  is  only  binding  so  far  as  it  is  acted 
upon,  and  the  guarantor  may  revoke  the  offer  before  its  accept- 
ance. Where  the  guaranty  is  not  a  continuing  one,  the  guaran- 
tor may  terminate  his  responsibility  at  any  time  by  giving  notice 
to  the  other  party  that  he  will  be  holden  no  longer.  Thus,  an 
accommodation  note,  made  payable  at  a  bank  on  demand,  may  be 
pledged  by  the  principal  as  a  continuing  guaranty  for  future 

■•  Boskin  v.  Andrews,  87  N.  Y.  337. 

"United  States  v.  Price,  9  How.  90-  Pickersgill  v.  Lahens,  15  Wall.  HO. 

»8  Coe  v.  Vogdes,  71  Pa.  St.  383. 

"Calvert  v.  Gordan,  3  Man.  &  Ry.  124. 

97  Offord  v.  Davies,  12  C.  B.,  N.  S.  748. 


62  SURETYSHIP  AND  GUARANTY.  (CL  4: 

loans,  to  be  made  to  him  by  the  bank ;  but  the  surety  may  termi- 
nate his  responsibility  by  notice.98  A  guaranty  may  be  revoked 
at  any  time  when  the  promise  creates  no  obligation,  but  is  in  the 
nature  of  a  proposal."  And  when  a  surety  has  a  right  by  his 
contract  to  terminate  his  liability  by  giving  notice,  after  notice 
he  is  no  longer  liable  for  subsequent  acts  of  his  principal.100 

And  where  the  period  of  the  surety's  liability  is  not  fixed, 
he  can  terminate  his  liability  by  giving  notice  to  the  obligee 
that  he  will  be  no  longer  bound.101  In  giving  this  notice,  it 
should  be  clear  and  explicit  and  not  ambiguous.102  In  continu- 
ing contracts  guarantying  the  fidelity  of  a  person,  or  employee, 
the  revocation  may  be  made  upon  proper  notice,  but  the  right 
must  be  exercised  reasonably,  giving  the  employer  a  reasonable 
time  to  adjust  the  changed  circumstances.  Thus,  the  employer 
cannot  be  compelled  to  discharge  the  employee  instantaneously, 
but  he  may  take  a  reasonable  time  to  do  it.103 

§  88.  Default  of  Principal. — Where  the  person  employed 
commits  an  act  of  dishonesty  or  defaults  and  is  unfaithful  to 
his  trust,  which  is  known  to  his  employer,  the  employer  is,  in 
duty  bound  for  his  own  protection,  to  take  precaution  for  his 
own  safety  which  the  surety  may  require  to  be  taken  for  his,  in 
order  that  future  defaults  may  be  avoided.104  Knowledge  of 
the  dishonesty  of  the  employee  by  the  employer,  which  renders 
him  unfit  for  the  place,  without  disclosure  of  the  fact  to  the 
guarantor  or  surety,  terminates  the  contract,  and  confines  the 
lial  'lity  to  acts  already  done.105     But  this  conduct  of  which 

"  .A'i;nvam  Bank  v.  Strever,  18  N.  Y.  502. 

■"  Offord  v.  Davies.  12  C.  B..  N.  S.  748;  Jordan  v.  Dobbins,  122  Mass.  168; 
Hyler  v.  Habioli,  150  Mass.  112. 

,0°  Pleasant's  Appeal.  75  Pa.  St.  383. 

101  Jendevine  v.  Rose.  36  Mich.  54:  Pratt  v.  Trustees,  93  111.  475. 

,02Lenusse  v.  Barker.  3  Wheat.  101. 

,"1  LaRose  v.  Bank,  102  Ind.  332;  Bostwick  v.  Van  Voorhis,  91  N.  Y.  353. 

194  Dwelling  House  Ins.  Co.  v.  Johnston,  90  Midi.  170. 

"•Phillips  v.  Foxall,  I..  R.  7  Q.  B.  666;  Burgess  \.  Eve,  L.  R.  13  Eq.  450; 
i  v.  Bank.  10  Bush,  23;  LaRose  v.  Bank.  102  Ind.  332;  Hunt  v. 
Roberts,  45  N.  Y.  691;  Sanderson  v.  Oston,  L.  R.  8  Exch.  73;  Emery  v. 
Baltz,  94  N.  Y.  408. 


§  89)  scope  of  surety's  liability.  63 

the  employer  has  knowledge,  and  which  will  release  the  guar- 
antor or  surety  from  further  liability,  must  relate  to  the  service 
in  which  the  principal,  or  employee,  is  engaged,  and  must  be 
something  more  than  mere  delinquency,  having  no  relation  to 
or  connection  with  the  subject-matter  of  the  guaranty  or  surety- 
ship.106 

§  89.  Revival  of  Surety's  Liability. — At  common  law 
an  oral  acknowledgment  is  sufficient  to  revive  a  barred  debt.107 
In  some  States  the  promise  must  be  express,  or  an  additional 
promise  with  a  performance  of  a  condition,  or  a  qualified  admis- 
sion that  the  debt  is  due  and  unpaid.  The  promise  must  be  of 
such  character  as  to  clearly  show  a  recognition  of  the  debt  and 
an  intention  to  pay  it.108 

The  duty  resting  upon  a  surety  to  see  that  his  principal  per- 
forms the  contract  guaranteed,  subsists  as  a  moral  obligation 
after  the  statute  of  limitation  has  run  against  the  right  to 
enforce  it,  and  will  support  a  new  promise  by  the  surety  to 
answer  for  the  principal's  default.109  Such  new  promise  re- 
quires no  new  consideration  to  support  it.110  So  where  a  surety 
is  relieved  of  liability  on  a  note,  and  subsequently  he  makes  a 
part  payment  of  the  note  and  promises  to  pay  the  balance  with 
knowledge  that  his  liability  had  been  extinguished,  it  will  bind 
him,  as  it  revives  his  liability.111  Some  decisions,  however,  hold 
that  a  new  consideration  as  well  as  a  new  promise  is  necessary 
to  take  the  case  out  of  the  operation  of  the  statute  of  limita- 
tion.112 But  this  matter  is  regulated,  in  many  States,  by  statu- 
tory provisions. 

Under  the  common  law,  where  a  surety  has  been  released 
by  the  extension  of  the  time  of  payment,  his  liability  will  be 

109  Atlas  Bank  v.  Brownell,  9  R.  I.  168;  Andrews  v.  Bealls,  9  Cow.  693; 
LaRose  v.  Bank,  102  Ind.  332. 

""Perkins  v.  Cheney,  114  Mich.  567. 
108  Carroll  v.  Forsyth,  69  111.  127. 
100  Perkins  v.  Cheney,  114  Mich.  567. 

110  Tebbetts  v.  Dowd,  23  Wend.  379 ;  Parsons  v.  Dickinson,  23  Mich.  56. 
m  Hinds  v.  Ingham,  31  111.  400. 

"'Van  Derveer  v.  Wright,  6  Barb.  547. 


64  SURETYSHIP  AND  GUARANTY  (Ch.  4 

revived  by  a  new  promise  to  pay,  or  by  bis  absolute  and 
unqualified  acknowledgment  of  tbe  existence  of  the  debt, 
wbicb  implies  a  promise  to  pay.113 

§  90.  Part  Payment  By  One  of  Several  and  Joint 
Debtors. — The  American  doctrine  is  that  a  part  payment 
by  one  of  several  joint  debtors  is  inoperative  to  prevent  the 
running  of  the  statute  of  limitations  as  to  the  others.114  In 
order  to  prevent  the  running  of  the  statute,  payment  must  be 
made  by  the  debtor  in  person,  or  for  him  by  authority,  or  for 
him  and  in  his  name  without  authority,  but  subsequently 
ratified  by  him.  The  mere  fact  that  he  has  knowledge  of 
payment  being  made  by  his  co-debtor  is  not  sufficient.115 
Hence,  a  partial  payment  of  a  promissory  note  or  debt  by 
the  principal  debtor  will  not  suspend  the  statute  of  limita- 
tions as  to  the  surety.116  Because  the  partial  payment  volun- 
tarily made  by  a  debtor  upon  a  claim  or  debt  is  in  the  nature 
of  an  acknowledgment  or  admission  by  him  of  his  liability 
for  the  whole  demand,  and  from  the  fact  that  he  made  the 
payment,  a  new  promise  on  his  part  to  pay  the  remainder  of 
the  debt  may  be  implied,  and  under  this  legal  inference  such 
new  promise  arises  at  the  time  the  partial  payment  is  made, 
but  this  does  not  renew  the  debt  as  to  his  co-debtors.117  Thus, 
partial  payment  made  by  one  debtor  on  a  note,  will  not  sus- 

118  Smith  v.  Winter,  4  Mees.  &  W.  454;  Stevens  v.  Lynch,  12  East,  38; 
Fowler  v.  Brooks,  13  N.  H.  240;  Bramble  v.  Ward,  40  Ohio  St.  267;  Ban- 
ning v.  Hall,  70  Minn.  94. 

114  Waughop  v.  Bartlett,  1G5  111.  124;  Willoughby  v.  Irish,  35  Minn.  63. 

mMcMullen  v.  RafTerty,  89  N.  Y.  456;  Littlefield  v.  Littlefield,  91 
N.  Y.  203. 

"•Mozingo  v.  Ross,  150  Ind.  688. 

117  Van  Keuren  v.  Parmelee,  2  N.  Y.  523;  Shoemaker  v.  Benedict.  11  N.  Y. 
176;  Winchell  v.  Hicks.  18  N.  Y.  558;  McLaren  v.  McMartin,  36  N.  Y.  88; 
Harper  v.  Fairley,  53  N.  Y.  442;  Graham  v.  Selover,  59  Barb.  313;  Suc- 
cession of  Voorheis,  21  La.  Ann.  659;  Smith  v.  Coon,  22  La.  Ann.  445; 
Hunter  v.  Robertson,  30  Ga.  479;  Bell  v.  Morrison.  1  Pet.  351  ;  Monenthal 
v.  Mosler,  16  Ohio  St.  566;  Vance  v.  Hair,  25  Ohio  St.  349;  Steele  v.  Souder, 
20  Kan.  39;  Davis  v.  ("lark,  58  Kan.  454:  Pfenninger  v.  Kokesch,  68  Minn. 
81;  Willoughby  v.  Irish,  35  Minn.  63. 


§  91,  92)  scope  of  surety's  liability.  65 

pend  the  running  of  the  statute  in  favor  of  the  other  debtors 
thereon,  although  the  party  paying  be  the  principal  debtor 
and  the  others  only  sureties.118 

But  other  courts,  following  the  English  rule,  hold  that  part 
payment  by  one  of  the  several  and  joint  makers,  before  the 
statute  attaches,  takes  it  out  of  the  operation  of  the  statute  as 
to  the  other  debtors,  or  makers.  The  principle  on  which  pay- 
ment by  a  joint  debtor  is  allowed  to  affect  the  other  parties,  is 
the  community  of  interest  among  them,  which  creates  the  pre- 
sumption that  the  party  paying  would  not  acknowledge  that 
which  is  adverse  to  his  own  interest,  and  therefore  it  will  be  in 
the  interest  of  the  others  and  bind  them.119 


§  91.  Absence  of  Principal  from  the  State. — Under 
the  general  American  rule,  the  absence  of  the  principal  from 
the  State  will  not  suspend  the  running  of  the  statute  in  favor 
of  the  surety.120  Because  the  principal's  and  the  surety's  liabil- 
ity are  several ;  and  where  there  is  a  sevaral  liability,  each  debtor 
is  entitled  to  the  protection  of  the  statute,  and  can  be  deprived 
of  it  only  by  some  personal  act  of  his  own.  The  sureties  are 
severally  liable,  and  are  severally  entitled  to  the  protection  of  the 
statute  of  limitation.121 

§  92.  Disability  of  Principal. — As  a  general  rule,  when- 
ever the  principal  is  discharged,  his  surety  will  be  relieved  of 
liability  also.  To  this  rule,  however,  there  are  exceptions. 
Thus,  in  some  States,  a  note  by  a  married  woman  is  void.  But 
her  surety,  in  the  absence  of  fraud,  is  liable  on  the  note,  not- 

118  Steele  v.  Souder,  20  Kan.  39;  Mozingo  v.  Ross,  150  Ind.  688;  Waughop 
v.  Bartlett,  165  111.  124. 

118  Block  v.  Dornian,  51  Mo.  31;  Disbrough  v.  Bideman,  20  N.  J.  L.  275; 
Corliss  v.  Fleming,  30  N.  J.  L.  349;  Whitlock  v.  Doolittle,  18  Vt.  440;  Pike 
v.  Warren,  15  Me.  390;  Hunt  v.  Bridgham,  2  Pick.  581;  Caldwell  v.  Sigour- 
ney,  19  Conn.  37 ;  Perkins  v.  Barstown,  6  R.  I.  505. 

""Bottles  v.  Miller,  112  Ind.  584;  Mozingo  v.  Ross,  150  Ind.  688. 

m  Davis  v.  Clark,  58  Kan.  454. 
5 


66  SURETYSHIP  AXD  GUARANTY.  (Ch.  4 

withstanding  her  discharge.122  If  the  payee  is  ignorant  of 
the  insanity  of  the  principal  on  a  note,  such  insanity  will  dis- 
charge the  principal,  but  not  the  surety.123 

Xor  is  the  surety's  liability  tested  by  determining  whether 
he  can  recover  indemnity  from  his  principal.  When  the  con- 
tract is  valid  in  its  inception,  the  principal  debtor  may  be  dis- 
charged by  operation  of  law  without  discharging  the  surety, 
where  the  creditor  does  not  by  his  acts  contribute  to  the  release. 
Thus,  a  discharge  of  the  principal  in  bankruptcy  does  not  dis- 
charge the  surety.124  And  where  a  married  woman's  note  is 
void,  she  may  buy  real  estate  and  give  her  note  signed  by  sure- 
ties for  the  purchase  price,  and  the  sureties  only  will  be  held, 
though  the  title  to  the  real  estate  passes  to  the  woman.125 

So  a  surety  signing  a  partnership  note  is  bound,  though  the 
note  was  executed  by  one  of  the  partners  without  authority.126 
Where  a  note  is  procured  by  duress  in  violation  of  law,  and  con- 
trary to  public  policy,  morality  and  justice,  then  the  surety  is 
not  liable  further  than  the  principal,  and  whatever  discharges 
the  principal  frees  the  surety  from  liability.127 

§  93.  Conflict  of  Laws. — Suretyship,  like  other  contracts, 
is  governed  by  the  law  of  the  place  where  made.  Thus,  a  note 
made  and  payable  in  a  State,  signed  by  a  surety,  will  be  gov- 
erned by  the  law  of  that  State;  and  so  the  law  of  that  State 
relating  to  sureties  applies  in  a  suit  in  another  State.128  And 
so    if  the  note  would  be  invalid  if  made  in  the  State  where 

m  Davis  v.  Stotis,  43  md.  103;  Allen  v.  Berryhill,  27  Iowa,  531;  Kim- 
ball v.  Newell,  7  Hill  (X.  Y.),  116;  Whitwortb.  v.  Carter,  43  Miss.  61; 
Jones  v.  Crothwaite,  17  Iowa,  393;  Lobaugh  v.  Thompson,  74  Mo.  600; 
Wagoner  v.  Watts,  44  N.  J.  L.  126. 

"■  Lee  v.  Yandell,  69  Tex.  34. 

'"Guild  v.  Butler,  122  Mass.  498;  Lackey  v.  Steere,  121  111.  598;  Ellis  v. 
Wilmot,  10  Exch.  10. 

"•  Foxworth  v.  Bullock,  44  Miss.  457.  See,  also,  Wiggins'  Appeal,  100 
Pa.  St.  155;  Winn  v.  Sandford,  145  Mass.  302;  Yales  v.  Wbeelock,  109  Mass. 
602;  Patterson  v.  Cone,  01  Mo.  439. 

"•Stewart  v.  Baehni,  2  Watts  356. 

■"OBborn  V.  Bobbins,  36  N.  Y.  365. 

"•Howard  v.  Fletcher,  59  N.  H.  151. 


§  93)  scope  of  surety's  liability.  67 

enforced,  yet  if  valid  in  the  State  where  made  the  court  will 
apply  the  law  of  the  State  where  executed.129 

But  where  a  contract  is  made  relating  to  the  title  of  real 
estate,  that  is  different.  The  general  principle  of  the  common 
law  is  that  the  law  of  the  place  where  real  estate  is  situated 
exclusively  governs,  in  respect  to  the  right  of  the  parties,  the 
transfer  and  solemnities  which  must  accompany  them.  Hence, 
a  promissory  note  made  by  a  wife  as  surety  for  her  husband,  in 
a  State  where  she  resides,  although  void  there  by  the  law  of 
that  State,  can  be  enforced  against  her  separate  estate  in  land 
in  another  State  where  she  would  have  a  right  so  to  contract, 
when  she  contracted  with  reference  to  such  separate  estate  and 
intended  to  charge  it  with  her  debt.130 

"•Milliken  v.  Pratt,  125  Mass.  374;  Long  v.  Templeman,  24  La.  Ann.  564. 
130  Frierson  v.  Williams,  57  Miss.  451. 


68  SURETYSHIP    AND    GUARANTY.  (Oh.  5 


CHAPTER  V. 

DISCHARGE    OF    SURETY. 

§  94.  Payment  of  Debt  Discharges  the  Surety. — Pay- 
ment of  the  debt  by  the  principal  discharges  the  surety.1  When- 
ever the  principal  debtor  is  released  the  surety  or  co-sureties  are 
also  discharged,  and  it  is  immaterial  by  whom  the  debt  is  paid.2 
Thus,  if  the  creditor  receives  money  from  the  principal  as  pay- 
ment, the  surety  is  discharged,  although  the  money  was  that  of 
a  third  party  who  had  made  the  principal  his  agent  to  buy  the 
note  and  not  to  pay  it.3  When  the  liability  of  the  principal  in 
a  note  is  discharged  by  payment,  the  liability  of  the  surety  is 
also  extinguished  ;4  and  the  liability  of  the  surety  cannot  exceed 
that  of  his  principal,5  except  a  discharge  of  the  principal  in  a 
bond  by  operation  of  law  does  not  discharge  the  surety.6 

§  95.  What  Acts  of  Principal  Will  Discharge  the 
Surety  After  Judgment. — Whatever  acts  will  discharge  a 
surety  before  judgment,  while  the  obligation  is  only  one  of  con- 
tract, will  have  the  same  effect  after  judgment.  Such  rule  is 
to  prevent  wrong  and  injury  and  protects  the  surety  under  his 
just  right  to  look  to  his  principal  for  indemnity  when  he  is 
damnified  by  his  undertaking ;  and  it  prevents  the  creditor  from 
discharging  the  principal  and  imposing  the  entire  burden  upon 
the  surety  without  means  of  redress.7     However,  there  are  cases 

Chapman  v.  Collins,  12  Cush.  163;  Coots  v.  Farnsworth,  Gl  Mich.  497. 

'Crawford  v.  Beall,  21  Md.  208. 

3  Eastman  v.  Plumer,  32  N.  H.  238. 

•Petefish  v.  Watkins,  124  111.  384. 

"United  States  v.  Allsburg,  4  Wall.  180. 

•  Whereatt  v.  Ellis,  103  Wis.  348;  Phillips  v.  Solomon,  42  Ga.  102. 

T  Commonwealth  v.  Miller,  8  Serg.  &  R.  452;  Talmadge  v.  Burlingham, 
9  Pa.  St.  21  ;  Carpenter  v.  King,  9  Met.  f>l  1  ;  Bangs  v.  Strong,  10  Paige,  11; 
7  Hill,  520;  Trotter  v.  Strong,  03  HI.  272;  Now  York  Bank  Note  Co.  v. 
Kerr,  77  111.  App.  53;  Boughton  v.  Bank,  2  Barb.  Ch.  458;  Potts  v.  Nothaus, 
1  Watti  &  S.  155;  Keighler  v.  Savage  Manf.  Co..  12  Md.  383;  Gustine  v. 
Bank,  10  Rob.   (La.)   412;  Ames  v.  Maclay,  14  Iowa,  281. 


§    96)  DISCHARGE   OF   SURETY.  60 

to  the  contrary,  though  against  the  weight  of  authority,  which 
hold  that  after  the  contract  has  been  reduced  to  judgment,  the 
equity  of  the  surety  terminates  with  regard  to  the  creditor,  and 
the  prior  obligation  is  merged  in  the  new  one  created  by  law, 
and  the  surety  becomes  a  principal  and  is  bound  for  the  debt 
irrespective  of  what  his  principal  and  creditor  may  do.  These 
cases  go  upon  the  ground  that  such  equities  cannot  be  shown, 
neither  when  the  contract  is  under  seal  nor  when  it  has  been 
reduced  to  judgment.8 

96.  Legality  of  Payment. — A  payment  may  be  illegal; 
if  illegal,  and  the  creditor  is  compelled  to  pay  over  the  money 
received  to  those  who  are  legally  entitled  to  it,  then  the  surety 
will  not  be  discharged.  The  act  of  the  creditor  which  discharges 
the  surety  must  be  an  act  involving  something  inequitable  at 
the  time  it  is  done,  and  which  interferes  with  the  right  of  the 
surety.  So  where  the  creditor  has  received  money  in  payment 
which  belongs  to  other  parties,  and  which  they  can  and  do  legally 
claim,  that  is  no  payment,  and  the  surety  is  not  discharged  if 
the  money  is  reclaimed.9 

However,  if  a  third  party  wishes  to  buy  the  note  and  makes 
the  principal  his  agent,  he  will  be  bound  by  his  agent's  acts. 
Thus,  if  a  third  party  gives  money  to  the  principal  to  buy  the 
note  for  him,  but  the  principal  pays  the  note,  and  the  creditor 
receives  it  in  good  faith,  it  is  a  payment,  and  the  surety  is  dis- 
charged.10 But  if  the  money  had  been  raised  by  the  debtor  by 
aid  of  the  indorsement  of  the  surety,  given  for  the  express  pur- 
pose of  enabling  the  debtor  to  raise  funds  to  pay  the  secured 
debt,  and  this  fact  is  communicated  to  the  creditor,  then  he 
must  apply  it  as  the  surety  directed.  But  if  the  creditor  is  not 
informed  of  the  intention  of  the  surety,  then  he  can  make  his 
own  application.11 

'Lafarge  v.  Dillenbach,  3  Denio,  157:  Lenox  v.  Prout,  3  Wheat.  520; 
Findley  v.  Bank,  2  McLean,  44 ;  Bay  v.  Tallmadge,  5  Johns.  Ch.  305 ;  Pole 
v.  Ford,  2  Chit.  125. 

»  Petty  v.  Cooke,  L.  R.  6  Q.  B.  789. 

10  Eastman  v.  Plumer,  32  N.  H.  238. 

"Harding  v.  Tifft,  75  N.  Y.  461. 


.TO  SURETYSHIP  AND  GUARANTY.  (Cll.  0 

§  97.  Application  of  Payments. — The  rule  in  regard  to  the 
application  of  payments  is  this:  (1)  The  debtor  at  the  time  of 
payment  has  a  right  to  designate  the  claim  to  which  it  shall 
apply.  (2)  If  the  debtor  fails  to  make  the  application  when  he 
has  the  opportunity  of  so  doing,  the  creditor  may  apply  the  pay- 
ment to  any  of  several  legal  claims  at  his  option.  (3)  If  neither 
debtor  or  creditor  makes  the  application  the  law  itself  will  apply 
the  payment  as  justice  and  equity  require.12  As  to  a  surety, 
this  doctrine  applies  when  the  principal  makes  the  payment 
from  funds  which  are  his  own  free  from  any  equity  in  favor 
of  the  surety.  Thus,  where  the  specific  money  paid  to  the 
creditor  and  applied  to  a  debt  of  the  principal  for  which  the 
surety  is  not  bound,  is  the  very  money  for  the  collection  and 
payment  of  which  he  is  surety,  he  is  not  bound  by  such  applica- 
tion, and  can  have  it  applied  to  the  debt  for  which  he  is  surety.13 
Whenever  justice  and  equity  show  that  the  surety  has  rights 
in  the  application  of  the  money,  it  must  be  applied  at  his  com- 
mand.14 Thus,  a  surety  on  a  contract  to  secure  a  bank  against 
loss  on  future  overdrafts  by  the  principal  debtor,  has  an  interest 
in  such  principal's  account,  and  is  entitled  to  have  payment 
applied  upon  the  account  guaranteed.15  The  civil  law  will 
apply  payments  to  the  unsecured  debts,  in  preference  to  secured 
debts,  except  when  the  latter  are  secured  by  a  surety,  in  which 
case  the  application  will  be  made  to  the  surety's  relief.16  At 
common  law  the  application  must  be  made  in  the  interest  of  the 
creditor  to  the  most  precarious  debt.17 

In  some  jurisdictions  the  rule  is  that  the  application  must  be 
made  to  the  most  precarious  security  whenever  the  interest  of 
the  creditor  requires  it,  but  not  to  the  prejudice  of  the  surety, 

"  Koch  v.  Roth,  150  111.  212. 

"  Merchants'  Ins.  Co.  v.  Herber,  68  Maine,  420. 

"  Hansen  v.  Rounsvaille,  74  111.  238. 

"Drake  v.  Sherman,  179  111.  362.  See,  also,  Crossly  v.  Stanley  (Iowa), 
83  N.  W.  Rep.  806. 

"  Blackmore  v.  Granbury,  98  Tenn.  277 ;  Brendenbecker  v.  Lowell,  32 
Barb.  23 ;  Marryatt  v.  White.  2  Rtarkie,  101  ;  Pattison  v.  Hall,  3  Cow.  747. 

"  Field  v.  Holland,  6  Cr.  8;  Mathews  v.  Suit/In,  46  Mo.  301;  Stanford 
Bank  v.  Benedict,  15  Conn.  437;  Morrison  v.  Bank,  65  N.  H.  253. 


§    98,  99)  DISCHARGE   OF   SURETY.  71 

who  may  insist  on  an  appropriation  to  the  oldest  debt,  and  hold 
himself  bound  or  discharged  accordingly.18 

§  98.  Application  by  Law. — In  the  absence  of  any  direc- 
tion by  the  debtor,  and  the  creditor  has  made  no  application  of 
payment,  then  the  law  steps  in  and  makes  the  application.  The 
law  will  apply  the  payment  to  the  oldest  item  of  indebtedness 
in  the  absence  of  any  circumstance  which  will  render  such  appli- 
cation unjust  to  third  parties.19  And  so  where  a  payment  has 
been  properly  applied  upon  a  particular  note,  it  instantly  ex- 
tinguishes to  the  extent  of  that  payment;  and  the  note  being 
made  by  several,  it  cannot  be  revived  against  any  of  the  parties 
without  the  consent  of  all.  An  attempt  thus  to  revive  an  extin- 
guished liability  would  be  fraud  upon  the  surety.20 

§  99.  Note  Payable  to  a  Bank — Application  of 
Debtor's  Deposit. — The  fact  that  the  principal  debtor  in 
a  note  payable  to  a  bank,  has  funds  on  deposit  in  the  bank  after 
the  maturity  of  the  note,  and  before  suit  on  the  note,  exceeding 
the  sum  due  thereon,  and  the  bank  does  not  appropriate  the  same 
to  its  payment,  does  not  discharge  the  surety.21  It  is  at  the 
election  of  the  bank  alone  to  apply  such  funds  to  the  payment 
of  the  note,  and  the  surety  cannot  complain  if  the  deposit  is  not 
so  applied.22 

Of  course,  when  the  principal  creditor  has  means  of  satisfac- 
tion actually  or  potentially  within  his  control,  he  must  retain 

"Pardee  v.  Markle,  11  Pa.  St.  555;  Berghaus  v.  Alter,  9  Watts,  386. 
See,  also,  Grasser  v.  Rogers,  112  Mich.  112. 

"Toulmin  v.  Copland,  2  CI.  &  F.  681;  Mills  v.  Fowkes,  5  Bing.N.  C.  455; 
Frost  v.  Mixsell,  33  N.  J.  Eq.  586. 

"Miller  v.  Montgomery,  31  111.   350. 

"Citizens'  Bank  v.  Elliott  (Kans.  App.),  59  Pac.  Rep.  1102;  Voss  v. 
Bank,  83  111.  599;  National  Machine  Bank  v.  Peck,  127  Mass.  298;  Houston 
v.  Hradon   (Tox.  Civ.  App.),  37  S.  \V.  Rep.  467. 

"Clayton's  Case.  1  Merv.  572;  Strong  v.  Foster,  17  ('.  B.  207;  Newburgli 
Bank  v.  Smith.  66  N.  Y.  271;  Pemberton  v.  Oakes.  4  Russ.  154:  Martin  v. 
Bank,  6  Har.  &  Johns.  (Md.)  235.  Compare  McDowell  v.  Bank,  1  Harr. 
(Del.)  369;  Dawson  v.  Bank,  5  Pike,  283,  298;  Law  v.  East  India  Co.,  4 
Ves.  824. 


12  SURETYSHIP  AND  GUARANTY.  (Ch.  5 

them  for  the  benefit  of  the  surety ;  but  this  rule  does  not  apply  to 
deposits  in  a  bank.  Because  without  an  express  agreement  or 
direction,  it  is  optional  with  the  bank  whether  or  not  it  will  apply 
the  money  thus  on  deposit  in  payment  of  the  note.23 

It  is  held  in  Indiana  that  a  bank  has  no  right  without  the 
depositor's  consent  to  apply  money  due  him  as  depositor  to  the 
payment  of  a  note  held  by  it  upon  which  it  is  liable  as  surety  ;24 
but  this  rule  does  not  apply  in  Pennsylvania,  and  the  bank  can 
apply  it  to  the  payment  of  such  note.25 

§  100.  Change  in  the  Principal  Contract. — It  is  the 
general  rule  that  any  agreement  between  the  principal  and  the 
obligee  or  payee  essentially  varying  the  terms  of  the  contract, 
by  which  the  surety  is  bound,  without  the  latter's  consent,  will 
release  him  from  responsibility.26  Thus,  a  surety  for  a  partner- 
ship which  is  to  continue  for  a  specified  period,  is  discharged 
if  the  partnership  is  continued  for  a  longer  time  than  that  pre- 
scribed in  the  contract.27  So  where  a  person  becomes  surety 
for  the  payment  of  a  certain  sum  as  alimony,  a  subsequent 
increase  of  the  amount  to  be  paid  by  the  husband  releases  the 
surety.28 

And  so  where  a  person  becomes  a  surety  on  a  contract  whereby 
the  principal  agrees  to  sell  goods  on  commission  for  the  vendor, 
which  were  to  be  shipped  as  ordered,  and  to  remit  cash  received 
on  sales  in  accordance  with  the  terms  of  the  contract,  and  subse- 
quently the  contract  is  extended  so  as  to  cover  a  larger  quantity 

"Xewburgh  Bank  v.  Smith,  66  N.  Y.  271;  People's  Bank  v.  Legrand, 
103   Pa.   St.   309. 

"Lamb  v.  Morris,  118  Ind.  179. 

"Lancaster  First  Nat.  Bank  v.  Shreiner,  110  Pa.  St.  188. 

"McCartney  v.  Ridgway,  160  111.  129;  Gardiner  v.  Harback,  21  111.  128; 
Stillman  v.  Wiekham,  106  Iowa,  597;  First  National  Bank  v.  Goodman, 
55  Neb.  418;  McWilHams  v.  Mason,  31  N.  Y.  294;  Warden  v.  Ryan,  37  Mo. 
App.  466;  Wier  Plow  Co.  v.  Walmsley,  110  Ind.  242;  Simonson  v.  Grant, 
36  Minn.  439;  Sage  v.  Strong,  40  Wis.  575;  Whilen  v.  Boyd,  114  Pa.  St. 
225;  Hamblen  v.  Knight,  GO  Tex.  36j  Jones  v.  Boyd,  40  Ohio  St-  139; 
Batchelder  v.  White,  80  Va.  103:   Smith  v.  SheJdon,  35  Mich.  42. 

"Small  v.  Carrie,  5  DeG.  M.  &  G.  141. 

*•  Sage  v.  Strong,  40  Wis.  575. 


§    101,  102)  DISCHARGE    OF    SUEETY.  73 

of  goods  which  the  principal  had  previously  purchased  from 
the  vendor — he  is  released  from  his  liability  as  surety.29 

In  general,  if  the  principal  does  any  act  or  makes  any  agree- 
ment for  a  valuable  consideration  without  the  consent  of  the 
surety,  express  or  implied,  and  which  tends  to  his  injury,  or 
which  suspends  the  right  to  coerce  payments  to  the  prejudice  of 
the  surety,  or  which  shall  put  the  surety  in  a  worse  condition  or 
increase  his  risk  or  impair  the  ultimate  liability  over  of  the 
principal  to  him,  the  surety  will  be  discharged;30  because  he 
cannot  be  made  liable  for  any  default  in  the  performance  of  a 
contract  which  he  had  not  guaranteed.31 

§  101.  When  the  Surety  is  not  Discharged  by  Change 
of  Contract. — Some  changes  or  qualifications  of  the  original 
contract  have  no  detrimental  effect  upon  the  surety's  rights,  and 
he  is  not  discharged.  Thus,  a  surety  is  not  discharged  by  a 
contract  between  his  principal  and  their  common  obligee  which 
does  not  place  the  surety  in  a  different  position  from  that  which 
he  occupied  before  the  contract  was  made.32  And  so  a  surety 
cannot  complain  of  the  reduction  of  the  rent  reserved  in  a  lease 
for  the  payment  of  which  he  is  liable,  though  made  without  his 
knowledge ;  it  will  not  release  him  from  his  obligation  any  more 
than  if  the  amount  of  such  reduction  had  been  indorsed  as  a 
payment  upon  the  lease.  Therefore,  a  reduction  from  seventy- 
five  dollars  a  month  rent  to  fifty  dollars  will  not  release  the 
surety.33  Likewise,  sureties  upon  a  bond  with  the  condition 
that  the  principal  shall  pay  for  all  purchases  made  by  him  from 
the  obligee,  are  not  discharged  from  liability  by  the  obligee's 
taking  the  note  of  the  principal  for  purchases  made  by  him.34 

§  102.  Alteration  of  the  Instrument. — Upon  the  ques- 
tion of  the  alteration  of  the  instrument,  there  is  a  conflict  of 

"Wier  Plow  Co.  v.  Walmsley,  110  Ind.  242. 

TOBoynton  v.  Phelps,  52  111.  210. 

"Taylor  v.  Bank,  11   App.  Cas.  596. 

•2  Roach  v.  Summer.  20  Wall.  165 :  Stuts  v.  Strayer,  60  Ohio  St.  284. 

"Preston  v.  Huntington,  67  Mich.   139. 

MParham  Sewing  Mach.  Co.  v.  Brock,  113  Mass.  194. 


74  SURETYSHIP  AND  GUARANTY.  (Ch.  5 

authority,  and  two  distinct  lines  of  decisions:  (1)  The  earlier 
ruling  of  the  courts  seems  to  hold  that  any  alteration  of  a  con- 
tract, however  immaterial,  after  its  execution  in  the  absence  of 
the  other  party,  avoided  it.35  (a)  Because  the  alteration  must 
affect  the  question  of  the  identity  of  the  instrument,  (b)  Because 
such  an  unauthorized  act  of  a  party  having  the  custody  of  a 
deed  should  be  construed  most  strongly  against  himself,  and 
if  legalized  might  facilitate  injury  and  irremediable  fraud.30 
(2)  The  other  line  of  cases  holds  that  a  mere  alteration  of  an 
instrument,  without  affecting  the  legality  of  the  contract  or 
any  of  the  parties  thereto,  does  not  render  it  invalid ;  that  the 
question  must  be  settled  upon  the  ground  of  justice  and  common 
sense,  and  not  upon  technical  quibbling,  by  which  it  has  been 
held  that  sureties  have  been  discharged.37 

So  under  the  old  rule  any  change  in  the  contract  made  with- 
out the  surety's  consent  discharged  him,  though  such  change  is 
for  his  benefit.38  So  it  is  not  sufficient  to  uphold  the  contract 
after  its  alteration,  however  slight,  and  even  if  the  change 
inures  to  the  surety's  benefit.39  This  is  the  common  law  rule. 
But  the  weight  of  authority  is  that  any  alteration  which  does 
not  destroy  the  identity  of  the  written  contract,  nor  in  any  man- 
ner affect  the  liability  of  the  surety,  is  not  such  an  alteration 
as  will  release  the  surety.40 

§  103.  Material  Alteration  of  Instrument. — It  is  now 
tne  rule  in  both  England  and  in  the  United  States  that  a  material 

"'Pigot's  Case,  11  Coke,  27. 

"Johnson  v.  Bank,  2  B.  Mon.  311. 

"Bank  v.  Hyde,  131  Mass.  77;  Smith  v.  United  States,  2  Wall.  219; 
Wlehr  v.  German  Congregation.  47  Md.  177;  Kaufmann  v.  Rowan,  189 
Pa.  St.  121. 

MDey  v.  Martin,  78  Va.  1;  Christian  v.  Keen,  80  Va.  369. 

"Miller  v.  Stewart,  9  Wheat.  081;  Reese  v.  United  States,  9  Wall.  13; 
Stephens  v.  Graham,  7  Serg.  &  R.  505;  Britton  v.  Uiersher,  46  Mo.  592; 
Owings  v.  Arnot,  33  Mo.  406;  Ilandley  v.  Barrows,  68  Mo.  App.  623;  State 
v.  Chick  (Mo),  48  S.  W.  Rep.  829;  United  States  Glass  Co.  v.  Bottle  Co., 
89  Fed.  Rep.  903. 

40  Bank  v.  Hyde,  131  Mass.  77;  Buckios  v.  IlufT,  53  Tnd.  474;  Kaufmann 
v.  Rowan,  189  Pa.  St.  121;  Wehr  v.  German  Congregation,  47  Md.  177. 


§    104)  DISCHABGKE    OF    SURETY.  75 

alteration  -without  the  consent  of  the  parties  sought  to  be  charged, 
extinguishes  their  liability.41  A  surety  is  bound  in  the  manner 
and  to  the  extent  provided  in  the  obligation  executed  by  him, 
and  no  further.  lie  may  stand  upon  its  terms  and  any  material 
alteration  of  the  instrument  Avithout  his  consent  discharges 
him.42  Thus,  where  a  building  is  being  erected  for  a  party  who 
is  to  pay  in  installments  as  the  building  progresses  toward  com- 
pletion, and  an  installment  is  paid  in  advance  to  the  contractor, 
who  is  under  a  bond,  such  payment  in  advance  discharges  the 
sureties  on  the  bond.43  Because  in  such  case  the  surety  may  be 
deprived  of  the  inducement  which  his  principal  would  have  to 
perform  the  contract  in  due  time  as  is  stipulated  in  the  instru- 
ment, and  thereby  make  the  surety  liable  in  damages  for  delay 
in  completing  the  work  on  time.44  If  the  surety  agrees  to  tho 
modification  of  contract  he  is  still  bound.45  But  where  he  does 
not  agree  to  the  alteration  he  is  discharged.  Thus,  where  several 
sureties  execute  a  joint  and  several  bond,  limiting  their  liability 
in  express  terms,  and  then  another  surety  as  agreed  executes  it, 
but  makes  a  material  alteration  as  to  his  liability  which  appears 
on  the  face  of  the  bond,  and  the  obligee  accepts  it  without  objec- 
tion, the  first  sureties  are  discharged  from  their  obligation,  and 
the  latter  surety,  having  executed  as  a  joint  and  several  bond, 
is  also  discharged.46 

§    104.  Commercial   Instruments. — Upon  the  ground  of 

"Wood  v.  Steele,  6  Wall.  80;  State  v.  Welbes  (Neb.),  81  N.  W. 
Rep.  629. 

42  Tomlinson  v.  Simpson,  33  Minn.  443 ;  Berkhead  v.  Brown,  5  Hill 
(N.  Y.),  34;  Simonson  v.  Grant,  36  Minn.  439;  Draper  v.  Wood,  112  Mass. 
315;  Huff  v.  Cole,  45  Ind.  300;  Newlan  v.  Harrington,  24  111.  206;  Kincaid 
v.  Yates,  63  Mo.  45;  Ryan  v.  Morton,  65  Tex.  258;  Whelen  v.  Boyd,  114 
Pa,  St.  228;  People's  Ins.  Co.  v.  McDownell,  41  Ohio  St.  650. 

"Simonson  v.  Grant,  36  Minn.  439.     See  sec.  67. 

44  General  Steam  Nav.  Co.  v.  Rolt,  6  C.  B.,  N.  S.  55 ;  Calvert  v.  Dock  Co., 
2  Keen,  638;  Leeds  v.  Dunn,  10  N.  Y.  469. 

45  Jordan  v.  Walters   (Iowa),  80  N.  W.  Rep.  530. 

"Ellesmere  Brewing  Co.  v.  Cooper  (1896),  1  Q.  B.  75.  In  this  case 
the  surety  executing  last  signed  his  name,  after  which  he  stated  the  amount 
of  his  liability,  which  was  not  the  amount  agreed  upon  at  first. 


76  SUBETYSUIP  AXD  GUARANTY.  (Cll.  5 

public  policy  very  slight  alterations  of  negotiable  paper  are  held 
to  be  material,  and  any  change  of  date,  or  amount,  or  rate  of 
interest,  or  place  of  payment,  is  held  to  discharge  the  parties  to 
the  instrument,  without  knowledge  of,  or  consent  to,  such  change, 
upon  the  ground  that  they  are  material  alterations.47  Com- 
mercial instruments  of  the  class  which  pass  from  hand  to  hand 
are,  on  the  ground  of  public  policy,  most  zealously  protected 
from  spoliation.  But  it  has  been  held  that  the  addition  of  a 
signature  of  a  surety  to  a  promissory  note,  in  the  form  of  a 
joint  promisor,  without  the  consent  of  the  maker,  does  not  dis- 
charge him.  Because  neither  the  liability  of  the  maker  of  the 
note,  nor  the  effect  of  a  mortgage  given  to  secure  it,  was  materi- 
ally altered  by  the  added  signature.48  And  if  the  alteration  in 
no  way  affects  the  bond,  though  made  without  the  surety's 
knowledge,  it  will  not  discharge  him.49  Thus,  where  there  is 
an  independent  collateral  agreement  between  the  principal  and 
obligee,  making  more  definite  one  of  the  clauses  of  the  instru- 
ment, but  not  in  any  way  changing  or  altering  the  instrument, 
and  does  not  touch  any  of  the  provisions  of  the  performance  of 
which  the  surety  has  guaranteed,  it  is  not  sufficient  to  discharge 
him :  because  such  an  agreement  makes  no  variation  in  the  obli- 
gation or  liability  of  the  surety,  and  does  not  concern  him,  and 
leaves  the  original  agreement  intact.50  And  so  an  alteration  of 
a  note  before  delivery  to  make  it  conform  to  the  intention  of 
the  parties,  does  not  release  the  surety  thereon,  though  made 
without  his  .knowledge.51 

■•">.  Change  of  Date. — The  alteration  in  the  date  of  the 
instrument  discharges  the  surety.  Thus,  an  alteration  in  the 
date  of  a  note  so  as  to  make  it  fall  due  one  year  later,  is  a 

4T  Wood  v.  Steele.  6  Wall.  80. 

''  M<T-nan  v.  Werges,  112  U.  S.  139.     See  sec  110. 

■United  States  Uass  Co.  v.  Mathews,  89  Fed.  Rep.  B28 

60  Smith  v.  United  States,  ■+  Wall.  219:   Wehr  v.  German  Congregation, 

47   M.I.    177:    Hank  v.  Hyde.   131    Ma-.   77. 

"Mattingly  v.  RiL  -    W.  Rep.  799. 


§    106,  107)  DISCHARGE    OK    SURETY.  77 

material  alteration  as  to  the  surety.52  So  the  change  of  the  time 
of  payment  of  a  note  from  "  one  day  "  to  "  one  year  "  after  date, 
is  such  alteration  as  will  discharge  the  surety.53  But  where  the 
date  is  changed  merely  to  correct  a  mistake  and  make  the  note 
such  as  both  parties  intended  it  to  be,  will  not  avoid  the  note  in 
the  hands  of  the  indorsee.54 

§  106.  Alteration  of  Amount. — If  the  amount  of  a  note  is 
changed  after  delivery,  the  surety  will  be  discharged.55  So  the 
alteration  of  an  official  bond  decreasing  the  penalty  after  it  is 
signed,  without  the  obligors'  consent,  will  relieve  them  of  lia- 
bility ;56  so  an  increase  of  the  penalty  will  discharge  the  surety.57 
And  when  a  surety  on  a  note,  complete  in  all  its  parts,  permits 
his  principal  to  take  it  to  a  bank  to  be  discounted,  who  alters  it 
to  a  larger  amount  and  then  has  it  discounted,  the  surety  is  not 
liable  for  the  larger  amount.58  But  the  rule  would  be  different 
if  the  surety  had  shown  negligence  in  filling  out  the  note. 

§  107.  Alteration  of  the  Rate  of  Interest. — A  change 
of  the  rate  of  interest  in  a  note  is  a  material  alteration.  And 
such  alteration  by  the  principal  with  the  consent  of  the  holder, 
but  without  the  consent  of  the  surety,  discharges  the  surety, 
although  without  fraudulent  intention.59  The  rule  is  the  same, 
if  the  rate  of  interest  is  decreased.60      So  the  alteration  of  a  note 

B2Wyman  v.  Yeomans,  84  111.  403;   Miller  v.  Gilliland,   19  Pa.  St.   119; 
Stephens  v.  Graham,  7  Serg.  &  R.  505. 
63  Stayner  v.  Joice,  82  Ind.  35. 
"Ames  v.  Colburn,  11  Gray,  390. 

65  Portage  County  Bank  v.  Lane,  8  Ohio  St    405. 

66  State  v.  Chick  (Mo.),  48  S.  W.  Rep.  829;  Doane  v.  Eldridge,  16 
Gray,  254. 

57  Dover  v.  Robinson,  64  Me.  183. 

58  Agawam  Bank  v.  Sears,  4  Gray,  95. 

"Harsh  v.  Klepper,  28  Ohio  St.  200;  Boalt  v.  Brown,  13  Ohio  St.  364; 
Hart  v.  Clouser,  30  Ind.  210;  Neff  v.  Horner.  63  Pa.  St.  327;  Jones  v. 
Bangs,  40  Ohio  St.  139;  Marsh  v.  Griffin,  42  Iowa,  403;  Wood  v.  Steele, 
6  Wall.  80. 

«°Whitmer  v.  Frye,  10  Mo.  348;   Post  v.  Losey,  111  Ind.  71. 


78  SURETYSHIP  AND  GUARANTY.  (Ch.  5 

by  the  addition  of  the  words  "  with  interest "  avoids  the  note 
as  to  the  surety  or  joint  promisor  who  did  not  consent  thereto.61 

§  108.  Changing  the  Place  of  Payment. — If  there  is  an 
alteration  of  the  note  by  changing  the  place  of  payment  without 
the  consent  of  the  surety,  it  will  discharge  him.62  It  is  the  duty 
of  the  maker  to  seek  the  payee  at  the  place  designated,  and  the 
surety  must  see  that  the  debt  is  paid,  but  if  the  place  of  payment 
is  changed  without  his  consent,  his  duties  are  thereby  increased, 
and  it  will  require  a  greater  effort  to  find  the  payee.63 

§  109.  Destroying  the  Identity  of  the  Contract. — By 
destroying  the  identity  of  the  contract,  the  surety  is  released. 
Hence,  a  material  alteration  of  a  note  made  by  one  of  the  prom- 
isors before  its  delivery,  and  without  the  knowledge  of  the  other 
promisor,  discharges  the  latter.64  So  the  addition  of  "  gold  " 
to  a  promissory  note  payable  in  dollars,  by  the  principal  before 
delivery,  without  the  consent  of  the  surety,  discharges  the  lat- 
ter.65 And  any  writing  upon  a  note  which  seeks  to  make  a 
guarantor  a  surety  is  material  and  releases  the  guarantor.66 
So  where  the  payee  of  a  note  writes  his  own  name  under  the 
maker's,  and  adds  after  his  name  "  security,"  it  avoids  the 
note.67  So  inserting  the  words  "  or  order"  in  a  non-negotiable 
note  is  a  material  alteration  and  renders  it  void.68  And  the 
same  is  true  where  a  qualified  guarantee  is  made  into  an  abso- 
lute guarantee.69  So  changing  the  payee  in  a  note  signed  by  a 
surety,  discharges  the  surety.70 

41  Fay  v.  Smith,  1  Allen,  477;  Waterman  v.  Vose,  43  Me.  504. 

M  Woodworth  v.  Bank,  19  Johns.  420;  Nazro  v.  Fuller,  24  Wend.  374; 
Southwiek  Bank  v.  Grosse,  35  Pa.  St.  82;  Pahlman  v.  Tayior,  75  111.  629; 
Townsend  v.  Wagon  Co.,  10  Neb.  615. 

63  Woodworth  v.  Bank,  1 9  Johns.  420. 

"Draper  v.  Wood,  112  Mass.  315. 

"*  J'.oirartli  v.  Breedlove,  39  Tex.  561;  Hanson  v.  Crowley,  41  Ga.  303; 
Church  v.  Howard,  17  Hun,  5. 

"Robinson  v.  Reid,  46  Iowa,  219. 

"  Chappell  v.  Spencer,  23  Barb.  584. 

"Haines  v.  Dennett,  11  N.  H.  180. 

"•Ncu-lnn  v.  Barrington,  24  111.  206 

70  Hull  v.  Alahlin,  69  Iowa,  408. 


§    110)  DISCHARGE    OF    SURETY.  79 

§  110.  Addition  of  Surety  to  a  Note. — Somo  courts  hold, 
against  the  weight  of  authority,  that  where  a  promissory  note 
is  fully  executed  by  the  principal  and  surety  and  delivered  to 
the  payee,  and  thereafter,  without  the  consent  of  the  surety, 
the  name  of  another  surety  is  added  thereto,  as  an  additional 
surety,  the  first  surety  is  discharged.71  But  the  better  rule  is 
that  the  addition  of  a  surety  on  a  promissory  note  without  the 
consent  of  the  maker  or  prior  surety,  does  not  discharge  either  of 
them.72  Because  the  signature  added,  although  in  the  form  of 
that  of  joint  promisor,  is  in  fact  that  of  a  surety  or  guarantor 
only,  and  the  original  maker  is,  as  between  himself  and  the 
surety,  exclusively  liable  for  the  whole  debt,  and  his  ultimate 
liability  to  pay  that  amount  is  not  increased  nor  diminished, 
and  according  to  the  general  current  of  the  American  authori- 
ties, the  addition  of  a  name  of  a  surety,  whether  before  or  after 
the  first  negotiation  of  the  note,  is  not  such  an  alteration  as  dis- 
charges the  maker  or  the  prior  surety.73 

The  English  cases  afford  no  sufficient  ground  for  a  different 
doctrine.  In  a  decision  at  law  it  was  held  that  the  signing  of 
a  note  by  an  additional  surety  without  the  consent  of  the  orig- 
inal makers  prevented  the  maintenance  of  an  action  on  the  note 
against  them.74  But  in  an  earlier  decision  of  equal  weight,  it 
was  held  that  in  such  a  case  the  addition  did  not  avoid  the  note 
nor  prevent  the  original  surety  on  paying  the  note  from  recover- 
ing of  the  principal  maker  the  amount.75  And  in  a  later  case, 
the  Court  of  Chancery,  upon  an  appeal  in  bankruptcy,  decided 

"Diekerman  v.  Miner,  43  Iowa,  508;  Hamilton  v.  Hooper,  46  Iowa,  515; 
Berreyraan  v.  Manker,  50  Iowa,  50;  Gardner  v.  Walsh,  5  El.  &  Bl.  82; 
Henry  v.  Coats,  17  Ind.  162;  Chadwiek  v.  Eastman,  53  Me.  12;  Shipp  v. 
Suggett,  9  B.  Mon.  5,  8;  Wallace  v.  Jewell,  21  Ohio  St.  163. 

"Mersman  v.  Werges,  112  U.  S.  139. 

"Montgomery  Railroad  v.  Hurst,  9  Ala.  513;  Stone  v.  White,  8  Gray, 
589;  McCaughey  v.  Smith,  27  N.  Y.  39;  Brownell  v.  Winnie,  29  N.  Y.  400; 
Miller  v.  Finley,  26  Mich.  249.  See,  also,  Aldous  v.  Cornwell,  L.  R.  3 
Q.  B.  573. 

74  Gardner  v.  Walsh,  5  El.  &  Bl.  83. 

"Cotton  v.  Simpson,  8  Ad.  &  El.  136;  3  Nev.  &  Per.  248. 


80  SURETYSHIP    AND    GUARANTY.  (Cll.  5 

that  the  addition  of  a  surety  was  not  a  material  alteration  of  the 
original  contract.7" 

So,  according  to  the  latter  rule,  a  mortgage  executed  by  hus- 
band and  wife  on  her  land,  for  the  accommodation  of  a  partner- 
ship in  which  the  husband  is  a  member,  and  as  security  for  the 
payment  of  a  negotiable  promissory  note  for  the  same  purpose, 
and  to  which  note  the  partner,  before  negotiating  it,  added  the 
wife's  name  as  a  maker,  with  the  consent  or  knowledge  of  her- 
self or  her  husband,  is  not  thereby  avoided  as  against  a  party 
who,  in  ignorance  of  the  note  having  been  so  altered,  lends 
money  to  the  partnership  upon  the  security  of  the  note  and 
mortgage.77 

In  Xebraska  if  other  sureties  sign  a  bond  after  it  has  been 
delivered,  the  prior  sureties  will  be  released  and  the  latter  held 
for  subsequent  default.78 

§  111.  Changing  the  Contract  of  a  Lease  Signed  by 
Sueety. — If  the  lessor  and  lessee  change  the  covenants  in  a 
lease,  without  the  surety's  knowledge,  he  is  discharged.79  But 
the  assignment  of  a  lease  by  the  lessee  does  not  discharge  either 
the  lessee  or  his  surety  from  the  covenants,  and  it  does  not  have 
this  effect  even  when  the  lessor  recognizes  the  assignment  by 
accepting  rent  from  the  assignee.80 

But  where  the  parties  to  the  lease  make  a  new  contract,  with- 
out the  consent  of  the  lessee's  surety,  the  surety  is  discharged,  as 
where  the  lease  is  surrendered  for  a  consideration.81  But  a  surety 
cannot  complain  if  the  rent  is  reduced  without  his  knowledge, 
as  such  reduction  is  equivalent,  to  payment  of  the  amount 
reduced.82     If  the  lessor  takes  back  part  of  the  land  and  reduces 

"Ex  parte  Yates,  2  DeG.  &  J.  191. 

"Mersman  v.  Werces.  112  I".  S.  139. 

TS  Stoner  v.  Keith  Co..  4S  Xeb.  279. 

T*  White  v.  Walker.  31  111.  422:  Grant  v.  Smith.  46  X.  Y.  95. 

"Way  v.  Reed.  6  Allen,  364;  Hunt  v.  Gardner,  39  X.  J.  L.  530;  Olney  v. 
Greene,  13  R.  I.  350;  Damb  v.  Hoffman.  3  E.  D.  Smith,  361;  Grommes  v. 
Trust  Co..  147  111.  634. 

* Nicholfl  v.  Palmer,  48  Wis.  110. 

"Preston  v.  Huntington.  67  M  it  h.  139. 


§    112)  DISCHARGE    OF    SURETY.  81 

the  rent  on  the  remainder,  this  will  release  the  surety.83  As 
a  general  rule  when  the  sureties'  rights  are  in  no  way  affected, 
they  will  not  be  discharged  from  the  covenants  in  the  lease.84 

§  112.  Building  Contracts. — The  doctrine  that  the  liability 
of  a  surety  is  strictissimi  juris  means  that  a  surety  shall  not  be 
held  beyond  the  precise  terms  of  his  contract,  and  not  that  a 
different  rule  must  be  applied  in  the  construction  of  contracts  of 
suretyship,  than  that  which  is  to  be  applied  in  the  construction 
in  general.  Thus,  a  bond  executed  by  a  contractor  to  secure  the 
performance  of  a  contract  entered  into  for  the  construction  of  a 
building,  and  to  pay  debts  incurred  in  the  prosecution  of  the 
work,  inures  to  the  benefit  of  one  furnishing  labor  and  material 
in  the  construction  of  such  building.  The  construction  contract 
being  a  part  of  the  bond,  and  it  being  provided  therein  that 
changes  can  be  made  in  the  plan  and  specifications  of  the  build- 
ing in  the  manner  therein  stated,  the  sureties  thereby  consented 
in  advance  to  any  departure  from  the  original  plans  which  were 
in  the  strict  construction  of  the  contract.85  And  in  such  agree- 
ments there  are  two  contracts  with  one  consideration  to  support 
both:  (1)  That  the  building  shall  be  erected  according  to  speci- 
fications; (2)  that  the  employees  of  the  contractor  shall  be  paid. 
Hence,  if  the  owner  of  the  building  makes  a  change  in  the  con- 
tract as  to  the  erection,  that  has  no  effect  as  to  the  employees  of 
the  contractor,  and  as  to  them  the  sureties  are  not  discharged.86 
The  bond  being  conditioned  not  only  to  protect  the  owner  of  the 
proposed  building,  but  the  material  men  and  employees,  the  lat- 
ter can  sue  on  the  bond  for  material  furnished  and  labor  per- 
formed.87 

In  many  States  a  third  person,  such  as  sub-contractors, 
laborers  and  material  men,  may  maintain  an  action  upon  a  bond 
given  by  a  contractor  to  the  State,  county,  city,  or  school  dis- 

"Penn  v.  Collins,  5  Rob.  (La.)  213. 
•*  Morgan  v.  Smith,  70  N.  Y.  537. 
"Smith  v.  Molleson,  148  N.  Y.  241. 

•'  Doll  v.  Crume,  41  Neb.  655 ;  Lyman  v   Lincoln,  38  Neb.  794. 
"  School  Dist.  v.  Livers,  147  Mo.  580. 
6 


82  SUBETYSHIP  AND  GUAKANTY.  (Ch.  5 

trict,  conditioned  for  the  faithful  performance  of  a  contract  for 
a  public  improvement  for  the  payment  of  all  claims  of  such  third 
persons,  though  not  expressed  in  the  bond,  and  a  change  in  the 
contract  with  the  principal  does  not  discharge  the  sureties  as 
to  the  vested  rights  of  such  third  parties.88 

So  a  surety  on  a  bond  cannot  be  released  from  the  original 
contract  by  a  change  in  the  agreement  between  the  contractor  and 
the  owner  of  the  building,  and  an  action  on  the  bond  can  be  main- 
tained against  him  by  a  material  man  for  an  unpaid  amount 
due  him  on  account  of  material  furnished  to  the  contractor.89 
Because  the  duties  of  the  sureties  in  such  cases  of  third  parties 
are  entirely  independent  of  the  owner's  rights,  and  when  the 
third  party's  rights  are  fixed  they  can  be  destroyed  only  by 
his  own  acts,  and  not  by  the  acts  of  the  principal  debtor  or 
contractor.90 

§  113.  Extension  of  Time  of  Payment. — This  subject  has 
been  fully  treated  under  the  headings  of  the  liability  of  sureties, 
and  so  will  be  given  but  a  short  review  in  this  connection.  The 
law  of  suretyship  forbids  that  there  shall  be  between  debtor  and 
creditor  any  agreement  that  shall  imperil  the  rights  of  the  surety. 
Thus,  a  material  man  cannot  hold  the  sureties  liable  on  a  con- 
tractor's bond,  conditioned  that  the  contractor  shall  make  full 
payment  to  all  persons  supplying  material,  if  he  has  extended  the 
time  of  payment  by  taking  notes  due  after  the  termination  of  the 
contract,  as  it  deprives  the  sureties  of  the  opportunity  to  compel 
appropriation  of  payments  as  made  for  claims  for  materials.91 

In  general,  any  extension  of  time  upon  a  valid  consideration 

88  Baker  v.  Bryan,  64  Iowa,  562;  Sample  v.  Hale,  34  Neb.  221;  Kors- 
meyer,  etc.,  Co.  v.  McCay,  43  Neb.  649;  Kauffman  v.  Cooper,  46  Neb.  644; 
Devers  v.  Howard,  144  Mo.  671;  St.  Louis  v.  Von  Phul.  133  Mo.  561; 
Knapp  v.  Swaney,  W>  Mich.  345;   Bank  v.  Winant,  123  N.  Y.  267. 

"Freeman  v.  Berkey,  45  Minn.  438;  Abbott  v.  Morressetto,  46  Minn.  10; 
Sepp  v.  McCann,  47  Minn.  304;  School  Dist.  v.  Livers,  147  Mo.  580;  Henri- 
CUB  v.  Engbert,  137  N.  Y.  488;  Dewey  v.  MoCollum,  91  Ind.  173. 

"Doll  v.  Crume,  41  Neb.  655;  Conn  v.  State,  125  Ind.  513;  Henricus  r. 
Engbert,  137  N.  Y.  488;  Wilson  v.  Webber,  92  Hun,  466;  157  N.  Y.  693. 

1   (  'nited  States  v.  Trust  Co.,  89  Fed.  Rep.  921.     See  sec.  42  et  seq. 


§    114)  DISCHARGE    OF    SUEETY.  83 

between  the  creditor  and  debtor,  without  the  surety's  consent, 
will  release  him.92  But  when  the  sureties  sign  as  makers,  and 
even  if  the  payee  knows  that  they  are  only  sureties,  an  extension 
of  the  time  by  "  the  makers  "  will  include  them,  so  they  will  not 
be  discharged.93  And  a  mere  indulgence  to  the  debtor  by  the 
creditor  will  not  discharge  the  sureties.94  So  when  a  collateral 
contract  is  made  between  the  debtor  and  creditor  to  extend  the 
time  of  payment,  which  is  to  relieve  the  surety,  and  the  creditor 
stipulates  that  it  shall  not  affect  the  original  contract,  the  col- 
lateral contract  does  not  release  the  surety.95 

The  surety  is  discharged  when  the  creditor,  without  his  con- 
sent, gives  time  to  the  principal  debtor  for  a  valuable  considera- 
tion, because  in  so  doing  he  deprives  the  surety  of  the  right  he 
would  have  had  from  the  mere  fact  of  entering  into  the  surety- 
ship— namely,  to  use  the  name  of  the  creditor  to  sue  the  princi- 
pal debtor — and  if  this  right  be  suspended  for  a  day  or  an  hour, 
and  not  injuring  the  surety  at  all,  and  even  positively  benefiting 
him,  nevertheless,  by  the  principle  of  equity,  it  is  established 
that  this  discharges  the  surety  altogether,96  and  also  security 
given  by  a  third  party.97 

§  114.  Consideration. — What  is  a  consideration  that  shall 
support  an  extension  of  time  and  thereby  relieve  the  surety  from 
liability  has  already  been  treated,  and  will  only  be  noticed  gener- 
ally in  this  connection. 

"Randolph  v.  Flemming,  59  Ga.  776;  Home  Nat.  Bank  v.  Waterman,  134 
111.  461;  Post  v.  Losey.  Ill  Ind.  74;  Morgan  v.  Thompson.  60  Iowa,  352; 
Rose  v.  Williams,  5  Kan.  483;  Wilson  v.  Foot.  11  Met.  285;  Jenkins  v.  Dan- 
iels, 125  N.  Car.  161;  Barrett  v.  Davis,  104  Mo.  549:  Dueker  v.  Rapp,  67 
N.  Y.  464;  Dillon  v.  Russell.  5  Xeb.  484;  Miller  v.  Shein,  41  Ohio  St.  376; 
Grayson's  Appeal,  108  Pa.  St.  581 ;  Majrn^v^Brown,  TlJTex.  241;  Jaffray  v. 
Crane,  50  Wis.  349;  Bau  v.  Mackey,  140  U.  S.  220;  Clarke  vT  Birley,  41 
Ch.  Div.  422. 

48  Sawyer  v.  Campbell,  107  Iowa,  397. 

"Wilson  v.  Webber,  92  Hun,  406;  157  N.  Y.  693;  Grier  v.  Flitcraft,  57 
N.  J.  Eq.  556. 

^Kaufmann  v.  Rowan,  189  Pa.  St.  121. 

MPolak  v.  Everett,  1  Q.  B.  D.  669;  Rees  v.  Berrington.  2  Yes.  540; 
Greenwood  v.  Francis  (1899),  1  Q.  B.  312;  Iiallock  v.  Yankey,  102  Wis.  41. 

87  Jenkins  v.  Daniels,  125  N.  Car.  161.     See  see.  42  et  seq. 


84  SURETYSHIP  AND  GUARANTY.  (Cll.  5 

To  have  the  effect  to  discharge  a  surety  the  agreement  for 
extension  of  time  of  payment  made  by  the  creditor  with  the  prin- 
cipal debtor  without  the  consent  of  the  surety,  must  be  upon  a 
valid  consideration,  such  as  will  preclude  the  creditor  from 
enforcing  the  debt  against  the  principal  until  the  time  expires.98 
But  the  mere  indulgence  of  the  principal  debtor  by  the  creditor, 
without  a  binding  contract  therefor  based  on  a  valid  considera- 
tion, will  not  discharge  the  surety." 

A  partial  payment  of  a  note  before  maturity  is  a  good  consid- 
eration, to  extend  the  time  to  pay  the  balance,  and  will  discharge 
the  surety.100  But  where  the  partial  payment  is  on  a  note  over- 
due, it  is  not  a  valid  consideration  for  the  extension  of  the  time 
to  pay  the  balance,  and  such  payment  cannot  therefore  discharge 
the  surety.101  The  consideration  need  not  be  based  upon  a 
money  consideration  for  the  extension;  a  mutual  promise  is  a 
sufficient  consideration.102  And  it  is  not  necessary  that  the 
benefit  inures  to  the  surety  direct.  The  surety  may  ratify  an 
unauthorized  act  of  his  agent  in  signing  his  name  to  a  bond.103 

§  115.  Effect  on  Surety's  Contract  by  Taking  Usury 
for  Extension. — While  the  agreement  to  pay  usurious  interest 
is  executory  as  to  both  parties,  it  is  void  as  to  both,  and  does  not 
discharge  the  surety  on  the  debt.104     But  when  the  contract  is 

Bs01mstead  v.  Latimer,  158  N.  Y.  313;  Wendling  v.  Taylor,  57  Iowa,  354; 
Williams  v.  Jenson,  75  Mo.  681;  Hogshead  v.  Williams,  55  Ind.  145;  Bonner 
v.  Nelson,  57  Ga.  433;  Galbraith  v.  Fullerton,  53  111.  126;  Brubaker  v. 
Okeson,  36  Pa.  St.  519;  Huntej^v^larj^^gSJ^^JJ^;  Fay  v.  Tower,  58 
Wis.  286. 

9B  First  Nat.  Bank  v.  Parsons  (W.  Va.),  32  S.  E.  Rep.  271;  Lowman  v. 
Yates,  37  N.  Y.  601 ;  Pucker  v.  Robinson,  38  Mo.  154;  Kirby  v.  Studebaker, 
15  Ind.  45;  Love  v.  Brown,  38  Pa.  St.  307;  Reed  v.  Flipper,  47  Ga.  273;  Lyle 
v.  Moore,  24  111.  95;  Davis  v.  Graham,  29  Iowa,  514;  Vancil  v.  Hogler,  27 
Kan.  407. 

,00Greely  v.  Dow,  2  Met.  176;  Uhler  v.  Applegate,  26  Pa.  St.  140. 

101  Davis  v.  Stout,  126  Ind.  11;  Petty  v.  Douglass,  76  Mo.  70;  Ingles  v. 
Sutliff,  36   K;in.  444;   Halliday  v.  Hart,  30  N.  Y.  474. 

•"  English  v.  Landon,  181   ill.  <>14. 

m  Lynch  v.  Smyth,  25  Colo.  103;  Drakely  v.  Gregg,  8  Wall.  242. 

*°*  Mieswindle  v.  Jung,  :'»'>  Wis.  361;  Polkinghorne  v.  Bendricks,  61  Wis. 
366:  Pyle  v.  (lurk.  3  1'..  Mon.  -J<i-i ;  Scott  v.  Hull.  <;  B.  Mon.  285;  Wittmer  v. 


§    116)  DISCHARGE    OF    SURETY.  85 

executed  and  the  creditor  has  accepted  the  usurious  interest  for 
an  extension  of  payment  on  the  note,  the  surety  is  released.105 
But  it  is  said  where  the  usury  causes  only  a  forfeiture  of  all 
interest,  the  forbearance  is  therefore  without  consideration,  and 
the  surety  is  not  discharged.106 

§  116.  Effect  of  Creditor's  Reservation  of  His  Reme- 
dies Against  Surety. — The  creditor  may  reserve  his  remedies 
against  the  surety  at  the  time  of  the  extension,  and,  hence,  not 
discharge  the  surety.107  So  an  agreement  upon  a  sufficient  con- 
sideration by  the  creditor  to  release  and  discharge  the  principal 
debtor,  but  expressly  reserving  in  such  instrument  or  release  as 
a  part  of  the  same  transaction,  the  right  of  the  creditor  to  proceed 
against  the  surety  upon  the  bond  of  the  same  obligation,  does  not 
affect  in  equity,  or  at  law,  the  continuing  liability  of  the 
surety.108 

Such  agreement  does  not  operate  as  an  absolute,  but  only  as  a 
conditional,  suspension  of  the  right.  The  stipulation  in  such 
cases  is  treated  in  effect  as  if  it  was  made  in  express  terms  sub- 
ject to  the  consent  of  the  surety,  and  the  surety  is  not  thereby 
discharged.109  So  when  a  note  is  payable  at  a  fixed  future  time, 
the  surety  is  not  discharged,  if  the  right  of  an  immediate  action 
is  reserved  upon  the  debt,  when  it  is  extended  by  the  creditor.1'0 

Ellison,  71  111.  301;  Galbraith  v.  Fullerton,  53  111.  126;  Tudor  v.  Goodloe, 
1  B.  Mon.  322. 

106  Myers  v.  Bank,  78  111.  257;  Danforth  v.  Semple,  73  111.  170;  Cross  v. 
Wood,  30  Ind.  378;  Lemmon  v.  Whitner,  75  Ind.  318;  Church  v.  Maloy, 
70  N.  Y.  63:  Camp  v.  Howell,  37  Ga.  312;  Blazer  v.  Beverly,  15  Ohio  St. 
57;  Corielle  v.  Allen,  13  Iowa,  1S9;  Glenn  v.  Magan,  23  W.  Va.  467;  Par- 
sons v.  Horrold  (W.  Va.),  32  S.  E.  Rep.  1002;  Wild  v.  Home,  74  Mo.  551; 
Stillwell  v.  Aaron,  69  Mo.  539. 

106  Polkinghorne  v.  Hendricks,  61  Miss.  366. 

107Kearsley  v.  Cole,  16  Mees.  &  W.  128;  Bealer  v.  Mayor,  10  C.  B.,  N.  S. 
76;  Tobey  v.  Ellis,  114  Mass.  120;  Hagey  v.  Hill,  75  Pa.  St.  108;  Mueller  v. 
Dobschuetz,  89  111.  176;  Rueker  v.  Robinson,  38  Mo.  154. 

108  Parmalee  v.  Lawrence,  44  111.  405 ;  Dupee  v.  Blake,  148  111.  453 ;  Rock- 
ville  Nat.  Bank  v.  Holt,  58  Conn.  526;  Jones  v.  Sarchett,  61  Iowa,  520. 

10»Calvo  v.  Davies,  73  N.  Y.  217;  Morgan  v.  Smith,  70  N.  Y.  537. 

110  Paine  v.  Voorhees,  26  Wis.  522 ;  United  States  v.  Hodge,  6  How.  279 ; 
Wyke  v.  Rogers,  1  DeGex,  M.  &.  G.  408;  Fox  v.  Parker,  44  Barb.  541;  Owen 


86  SURETYSHIP    AND    GUARANTY.  (Ch.  5 

§  117.  Extension  With  Consent  of  Subety. — Whenever 
the  creditor  gives  time  and  makes  a  new  contract  with  the  prin- 
cipal debtor,  of  which  new  contract  the  surety  has  knowledge  and 
to  which  he  assents,  he  is  not  thereby  discharged.111  By  the 
common  law,  when  action  is  upon  a  specialty  contract,  the  surety 
cannot  set  up  a  parol  agreement  to  enlarge  the  time  without  his 
consent  as  a  defense,  for  such  is  for  a  court,  of  equity.112 

A  surety  cannot  be  dischareed  where  he  induces  the  extension 
of  time  upon  a  valuable  consideration,  or  connives  with  that 
intention.113 

J'  118.  Waiver  of  Discharge. — The  surety  may  waive  his 
discharge.  Thus,  after  his  discharge  with  knowledge  that  he  is 
no  longer  liable,  if  he  promises  to  pay  the  debt  he  is  then  bound 
for  its  payment.114  So,  if  a  surety,  after  time  given  by  the 
creditor  to  the  principal,  promises  to  pay  the  debt  with  knowl- 
edge of  the  fact,  he  is  liable  without  anv  new  consideration  for 
the  promise.  He  will  be  bound  upon  the  original  consideration, 
and  not  upon  the  new  promise.115 

^  119.  Extension  Must  Be  for  a  Time  Certain. — In  order 
that  an  extension  of  time  of  payment  may  release  a  surety,  it 
must  appear  that  it  was  for  a  time  certain  and  without  the 
surety's  consent.116  So  an  agreement  for  the  extension  of  time 
between  the  payee  and  principal  maker  of  a  promissory  note 

v.  Houran.  13  Bear.  K.'G:  Trice  v.  Barker,  4  El.  &  B.  760;  Viele  v.  Hoag, 
24  Vt.  46:  Webb  v.  Hewitt.  3  Kay  &  J.  438:  Hutchinson  v.  Wright,  61 
N.  EL  108. 

1,1  Klein  v.  Long,  27  App.  D.  158;  Adams  v.  Way.  32  Conn.  160:  Corlies 
v.  Estes,  31  Vt.  653;  Smith  v.  Winter.  4  Mees.  &  W.  454;  Rockville  v.  Holt, 
58  Conn.  526;  Osgood  v.  Miller.  67  Me.  174;  Crosby  v.  Wyatt,  10  N.  EL  31$. 

™Davy  v.  Pendergrass,  5  Barn.  &  Al.  1S7;  Parker  v.  Watson.  S  Exch. 
409;  I  •  op  v.  United  States,  3  Mason,  446;  Wittmer  v.  Ellison,  72  111.  301. 
iliiaine   \.   Gooeh,   73  111.  App.  557. 

114  First  Nat.  Bank  v.  Whitman,  66  111.  33;  Rindskopf  v.  Doinan,  2S 
Ohio  St.  516. 

1 '-  Porter  v.  Hodenpuyl.  0  Mieh.  11:  Bigourney  v.  Wetherell.  6  M  t  553j 
Bank  v.  Johnson,  0  Ala.  622;   Fowler  v.  Brooks,  13  N.  EL  240. 

"•Olson  v.  Chism,  21  Ind.  App.  40;  Gardner  v.  Watson.  13  111.  347; 
Flynn  v.  Mudd.  27   111.  323. 


§    120,  121)  DISCHARGE    OF    SURETY.  87 

must  be  for  a  definite  time  in  order  that  it  may  work  a  release 
of  the  surety;117  it  must  not  only  be  binding  in  law,  but  time  of 
extension  must  be  precisely  fixed,118  because  if  a  definite  time 
is  not  fixed,  the  creditor  can  proceed  at  any  time  to  collect 
the  debt. 

§  120.  Giving  Time  to  One  of  Two  or  More  Sureties. — 
Giving  time  to  one  of  two  or  more  sureties  on  a  promissory  note 
does  not  discharge  the  others.119  Because  the  mere  giving  of 
time  to  one  of  two  or  more  obligors  whose  obligations  are  equal, 
will  not  discharge  the  others.120  For  giving  time  by  oral  agree- 
ment to  one  of  two  sureties  cannot  have  any  greater  legal  effect 
than  a  covenant  by  a  grantor  not  to  sue  for  a  specified  time,  one 
of  two  or  more  joint  debtors.  Such  covenant  is  not  a  release, 
and  it  furnishes  no  defense  to  the  other  debtors.121  Where  a 
note  is  given  by  several  parties,  though  part  of  them  are  in  fact 
sureties  for  the  others,  yet  if  that  does  not  appear  upon  the  face 
of  the  note,  the  payee  does  not  discharge  the  sureties  by  giving 
time  to  the  principal  debtor,  unless  he  has  knowledge  at  the  time 
of  so  doing  that  the  other  makers  were  sureties.122  But  if  a 
judgment  creditor  extends  the  time  for  payment  as  to  one  of  two 
judgment  debtors,  the  creditor  knowing  that  the  other  was  surety 
for  the  one  to  whom  he  extended  the  time,  the  surety  is  dis- 
charged.123 

§  121.  What  is  a  Promise  of  Extension. — A  promise  of 
extension  upon  a  note,  in  order  to  discharge  the  surety  thereto, 
must  be  such  as  will  prevent  the  holder  from  bringing  action 
against  the  principal.     So  taking  interest  in  advance  will  not 

"'  Morgan  v.  Thompson,  60  Iowa,  280 ;  Jenkins  v.  Clarkson,  7  Ohio,  72. 
118  Miller  v.  Stern,  2  Pa.  St.  286;  Hayes  v.  Wells,  34  Md.  512;  Woolfolk 
v.  Plant,  46  Ga.  422 ;  Worthington  v.  Gay,  7  Sm.  &  M.  522. 
"•Draper  v.  Wild,  13  Gray,  580. 
120  Dunn  v.  Slee,  Holt,  N.  P.  399;   1  Moore,  2. 
ulShed  v.  Pierce,  17  Mass.  628;  Wilson  v.  Foot,  11  Met.  285. 
ia  Wilson  v.  Foot,  11  Met.  285;  Mullendore  v.  W'ertz,  75  Ind.  431. 
m  Gibson  v.  Ogden,  100  Ind.  20. 


88  SURETYSHIP  AND  GUARANTY.  (Ch.  5 

constitute  such  promise.124  In  order  to  discharge  the  surety  the 
contract  must  be  such  as  will  prevent  the  holder  from  suing  the 
principal  before  the  expiration  of  the  time  alleged  for  the  ex- 
tension.125 This  is  on  the  principle  that  an  express  covenant 
not  to  sue  the  principal  debtor,  for  a  certain  or  prescribed  time, 
will  not  discharge  the  surety,  because,  notwithstanding  the  agree- 
ment, suit  may  be  brought  at  any  time,  and  the  covenant  is  no 
bar,  but  only  gives  the  covenantee  an  action  for  damages.126 
When  time  is  given  to  the  principal  debtor  by  a  valid  agreement 
which  ties  up  the  hands  of  the  creditor,  the  surety  is  discharged. 
For  if,  notwithstanding  such  contract,  it  were  competent  to  sue 
the  surety,  the  latter  would  immediately  have  his  remedy  over 
against  the  debtor.127 

§  122.  Accepting  New  Note. — The  surety  is  discharged 
when  the  creditor  accepts  a  new  note  payable  at  a  future  time, 
because  if  the  agreement  to  extend  is  not  expressed  it  will  be 
implied.128  Thus,  taking  two  renewal  notes  from  the  principal 
debtor  by  way  of  conditional  payment  of  an  existing  note  and 
receipt  of  interest  in  advance  upon  it,  amounts  to  an  extension  of 
the  original,  and  effects  discharge  of  the  surety.129  The  taking 
of  a  new  note  implies  an  agreement  to  give  time  on  the  old.130 
The  acceptance  by  the  creditor  of  a  valid  obligation  payable  in 
the  future,  operates  to  suspend  all  rights  of  action  on  the  consid- 
eration for  which  it  is  given  until  the  time  fixed  for  the  payment 

"*  Hosea  v.  Rowley,  65  Mo.  357 ;  Oxford  Bank  v.  Lewis,  8  Pick.  458. 

"*  Blackstone  Bank  v.  Hill,  10  Pick.  153. 

"•Perkins  v.  Gilman,  8  Pick.  229;  Fallerm  v.  Valentine,  11  Pick.  156; 
Doe  v.  Tuttle,  4  Mass.  414. 

mClippinger  v.  Cress,  2  Watts,  45;  First  Nat.  Bank  v.  Leavitt,  65 
Mo.  562. 

"'Fellows  v.  Prentiss,  3  Denio,  512;  Place  v.  Mcllvain,  38  N.  Y.  96; 
Hubbard  v.  Gurney,  64  N.  Y.  457. 

"•First  Nat.  Bank  v.  Leavitt,  65  Mo.  562;  Greene  v.  Bates,  74  N.  Y.  33; 
Robinson  v.  Offutt,  7  T.  B.  Mon.  540;  Walters  v.  Swallow,  6  Whart.  446. 

M  Myers  v.  Welles,  5  Hill  (N.  Y.),  463;  Appleton  v.  Parker,  15  Gray, 
173;  Weed  Sewing  Mach.  Co.  v.  Aberreicht,  38  Wis.  325;  Slagle  v.  Pow, 
41  Ohio  St.  603. 


§    123)  DISCHARGE    OF    SURETY.  89 

of  the  obligation,  and,  honce,  discharges  the  surety  on  the  orig- 
inal obligation.131 

However,  there  are  decisions  which  hold  that  the  mere  fact 
that  the  creditor  takes  a  new  note  payable  after  maturity  of  the 
original  debt,  raises  no  implication  in  law  that  he  agrees  to  give 
time  for  the  payment  of  the  original  note,  and  that  the  agree- 
ment to  give  time  must  be  proved  as  a  fact.132 

§  123.  Taking  Collateral  Security. — Taking  collateral 
security  by  the  creditor  or  holder  of  the  note  in  addition  from 
the  maker  of  the  instrument,  does  not  release  the  indorser  or 
surety.  And  it  is  not  material  of  what  character  the  collateral 
security  may  be.  It  may  consist  of  promissory  notes  not  due,  a 
mortgage  payable  in  the  future,  or  anything  else,  which  does  not 
affect  the  remedy  on  the  original  contract.  This  can  only  be 
done  by  agreement  for  a  valuable  consideration.  The  remedy 
on  the  collateral  instrument  is  wholly  immaterial  unless  it  dis- 
charges or  postpones  the  original  obligation.  Thus,  taking  a 
mortgage  from  the  principal  debtor  as  to  which  time  is  given 
for  payment,  but  which  is  only  collateral  security  for  the  debt, 
and  there  being  no  agreement  for  a.  valuable  consideration  to  give 
time  to  the  debtor  personally,  does  not  discharge  the  sureties.133 
So  a  holder  of  a  bill  of  exchange,  by  taking  collateral  security 
of  the  drawer,  not  giving  time,  does  not  release  the  endorser.134 
So  if  a  second  bond  is  given  to  the  obligee  merely  as  a  collateral 
security  for  the  prior  bond,  such  bond  will  not  be  deemed  ex- 

1,1  Chickasaw  County  v.  Pitcher,  36  Iowa,  593 ;  Simmons  v.  Guise,  46  Ga. 
473;  Greene  v..  Bates,  74  N.  Y.  333;  Walton  v.  Mascall,  13  Mees.  &  W.  452; 
Price  v.  Price,  16  Mees.  &  W.  232;  Baker  v.  Walker,  14  Mees.  &  W.  465: 
Stuart  v.  Lancaster,  84  Va.  772;  Smarr  v.  Schnitter,  38  Mo.  478;  Ritten- 
house  v.  Kemp,  37  Ind.  258. 

1M  Weakley  v.  Bell,  9  Watts,  273 ;  Shaw  v.  Church,  39  Pa.  St.  226 ;  Bing  v. 
Clarkson,  2  Barn.  &  Cr.  14.     See,  also.  Wells  v.  Hurst,  101  Tenn.  656. 

133  United  States  v.  Hodge,  6  How.  279 ;  German  Savings  Inst.  v.  Vahle, 
28  111.  App.  557;  Thirlrpjr.  Purer.  8  Tex.  66:  Brengle  v.  Bushey,  40 
Md.  141. 

"«  James  v.  Badger,  1  Johns.  Cas.  131 ;  Hurd  v.  Little,  12  Mass.  502. 


90  SUKETYSHIP  AND  GUARANTY.  (Ch.  5 

tended,  because  that  which  is  taken  merely  as  collateral  secur- 
ity has  time  to  run  before  it  falls  due.135 

§  124.  Personal  Judgment  for  Deficiency  in  Fore- 
closure.— It  is  the  rule  that  a  judgment  or  decree  against  one 
of  two  or  more  joint  principals  or  sureties  releases  the  others.  A 
deficiency  decree  in  foreclosure  proceedings  is,  in  effect,  a  per- 
sonal judgment  upon  the  note,  and  where  the  court  renders  judg- 
ment against  one  of  several  makers,  this  extinguishes  the  cred- 
itor's, or  mortgagee's  right,  as  to  the  others.  Even  if  the  note 
is  joint  and  several,  and  where  it  may  be  sued  severally,  yet 
where  all  are  sued  as  joint  makers  and  judgment  is  taken  against 
one,  the  other  makers,  by  this  action,  are  released.136  Thus,  one 
who,  though  made  a  party  defendant  to  foreclosure  proceedings, 
is  a  joint  maker  of  the  secured  note,  and  is  not  held  in  the 
deficiency  decree,  will  be  released,  although  as  between  him  and 
the  party  held  by  the  judgment  in  the  decree  he  is  liable  on  the 
note,  as  surety.137 

§  125.  Fraud — Extension  of  Time. — A  fraud  of  the  prin- 
cipal debtor  unknown  to  the  creditor,  extending  the  time,  will 
not  release  the  surety.  Thus,  where  the  maker  of  a  promissory 
note  procures  its  surrender  and  extension  of  time  by  giving  a 
new  note  to  which  he  has  forged  the  sureties'  names,  will  not 
discharge  the  sureties  on  the  surrendered  note,  because  the  note 
had  never  been  legally  extended  as  to  payment.138  But  if  the 
payee  had  discovered  the  fraud,  and  holds  the  substituted  note 
without  informing  the  sureties  of  the  fraud,  and  they  are  in- 
jured, then  their  liability  ceases.  In  suoh  case  the  creditor 
waives  the  fraud  and  holds  new  note  for  the  debt.139  So  taking  a 
note  with  forged  indorsements,  in  renewal  of  another  note  dis- 

"■Rerasen  v.  Graves,  41  N.  Y.  471;  Clarke  v.  Birley,  41  Ch.  D.  422;  Mer- 
riman  v.  Barker,  121  Ind.  74.     Compare  Haubest  v.  Kraus,  4  Phil.  110. 

"•Lawrence  v.  Beecher,  116  Ind.  312. 

m  Travelers   Ins.  Co.  v.  Mayo.  170  111.  498. 

"•Hobhard  v.  Hart.  71  Iowa.  668.  See.  also,  Wheeler  v.  Bank  (Ky.),  49 
L.  R.  A.  816  and  note. 

m  Kirhy  v.  Landis,  ">4  Iowa,  150. 


§    126)  DISCHARGE    OF    SUEETY.  91 

counted  at  a  bank,  does  not  extinguish  the  prior  note,  and,  hence, 
the  sureties  on  it  are  not  discharged.140 

§  126.  Fraud  to  Induce  Surety  to  Sign  Contract. — If 
the  surety  is  induced  to  sign  a  contract  by  fraud  of  the  obligee, 
he  is  not  liable.  If  the  creditor  makes  use  of  any  artifice  to  de- 
ceive the  surety,  and  he  is  thereby  deceived  and  signs  the  instru- 
ment, the  creditor  cannot  hold  him  liable.141  And  so  if  the 
surety  is  induced  to  become  such  by  fraud  perpetrated  on  him 
by  the  creditor,  as  by  false  representations  as  to  material  facts, 
the  surety  is  not  liable.142 

If  the  creditor  knows  or  has  good  grounds  for  believing  that 
the  surety  has  been  deceived  or  misled,  or  that  he  was  induced  to 
enter  into  the  contract  in  ignorance  of  facts  materially  increas- 
ing the  risks  of  which  he  has  knowledge,  and  he  has  an  oppor- 
tunity before  accepting  his  undertaking  to  inform  him  of  such 
facts,  good  faith  and  fair  dealing  demand  that  he  should  make 
such  disclosure  to  him.  If  he  accepts  the  contract  without  doing 
so,  the  surety  may  afterwards  avoid  such  execution  of  the  instru- 
ment as  a  fraud.143  However,  if  there  is  nothing  in  the  circum- 
stances to  indicate  that  the  surety  is  being  misled  or  deceived, 
or  that  he  is  entering  into  the  contract  in  ignorance  of  facts 
materially  affecting  its  risk,  the  creditor  is  not  bound  to  seek 
him  out  or,  without  being  applied  to,  communicate  to  him  inform- 
ation as  to  facts  within  his  knowledge.  In  such  case  he  may 
assume  that  the  surety  has  obtained  information  for  his  guidance 
from  other  sources,  or  that  he  has  chosen  to  assume  the  risks  of 
undertaking,  whatever  they  may  be.144 

"*  Ritter  v.  Singmaster,  73  Pa.  St.  400. 

141  Roper  v.  Sangamon  Lodge,  91  111.  518;  Ham  v.  Greve,  34  Ind.  18; 
Trammell  v.  Swan.  ,25  Tex.  473. 

142  Evans  v.  Keeland.  '.»  Ala.  42;  Waterbury  v.  Andrews,  07  Mich.  2S1  : 
Bank  v.  Railway  Co.,  65  Iowa,  692. 

"'Booth  v.  Storrs,  75  111.  438;  Ham  v.  Greve,  34  Ind.  18;  Pidock  v. 
Bishop,  3  Barn.  &  Cr.  605 ;  Owen  v.  Homan,  4  H.  L.  Cas.  997 ;  Hamilton  v. 
Watson,  12  CI.  &  F.  109. 

144  Bank  v.  Railway  Co.,  65  Iowa,  692;  Graves  v.  Bank,  10  Bush,  23; 
Railton  v.  Mathews,  10  CI.  &  F.  934. 


92  SURETYSHIP  AND  GUARANTY.  (Ch.  .") 

A  surety  or  guarantor  cannot  interpose  the  fraudulent  or  false 
representation  of  his  principal  as  a  defense  to  the  payment  of  a 
note,  without  connecting  the  payee  with  such  representations  ;145 
the  surety  is  not  relieved  if  the  false  representations  are  made 
by  a  third  person.146 

§  127.  Notice  to  Creditor  of  Principal  Debtor's  Dis- 
honesty.— In  many  cases  a  bond  is  given  for  the  fidelity  of  the 
employee,  who  becomes  dishonest,  which  is  known  to  the  em- 
ployer; in  such  case  it  is  the  employer's  duty  to  inform  the 
surety.  If  the  employer  continues  the  dishonest)  employee  in 
his  service  without  giving  notice  to  the  surety,  then  the  surety  is 
not  liable  for  any  loss  arising  from  the  dishonesty  of  the  employee 
during  his  subsequent  service.  But  this  rule  has  no  application 
to  cases  of  mere  breach  of  duty  or  contract  obligations  on  the 
part  of  the  employee,  not  involving  dishonesty  on  his  part,  or 
fraud  or  concealment  on  the  part  of  the  employer.147  The  mere 
fact  that  the  creditor  had  knowledge  that  the  employee,  who  was 
a  collection  agent,  failed  to  remit  the  money  collected,  does  not 
impose  upon  the  obligee  the  duty  to  notify  the  surety.148  It  is 
a  breach  of  good  faith  for  the  employer  or  obligee  to  continue 
the  servant  in  a  place  of  trust  after  discovering  his  dishonesty 
or  defalcation,  which  is  presumptively  and  in  fact  unknown  to 
the  surety,  and  without  notifying  the  surety  of  the  fact,  giving 
him  an  opportunity  to  elect  as  to  whether  he  will  continue  the 
risk.149 

,4<sLadd  v.  Board,  80  111.  233;  Rothermal  v.  Hughes,  134  Pa.  St.  510; 
Lucas  v.  Owens,  113  Ind.  521. 

140  Brown  v.  Davenport,  76  Ga.  799 ;  Soog  v.  State,  39  N.  J.  L.  135. 

147  Home  v.  Farrington,  82  N.  Y.  121  j  Watertown  F.  Ins.  Co  v.  Simmons, 
131  Mass.  85;  Charlotte  v.  Gow,  59  Ga.  G85 ;  Saint  v.  Wheeler,  95  Ala. 
362;  Richmond  v.  Kasey,  30  Gratt.  218;  Lancashire  Ins.  Co.  v.  Callahan, 
I  B    Minn.  277. 

'  \.1t!;>  Ins.  Co.  v.  Fowler,  108  Mich.  557;  Atlantic,  etc.,  Tel.  Co.  v. 
Barnes,  64  N.  Y.  385;  Cumberland  Build,  and  Loan  Asso.  v.  Gibbs  (Mich.), 
78  N.  W.  Rep.  138. 

"•  Phillips  v.  Foxall,  L.  R.  7  Q.  B.  0G6;  Connecticut  Mut.  Ins.  Co.  v.  Scott 
81   Ky.  540. 


§  128,  129)  discharge  of  surety.  93 

§  128.  Negligence  of  Creditor  in  Not  Availing  Himself 
of  the  Debtor's  Means. — It  is  settled  law  that  when  a  creditor 
has  means  of  satisfying  the  debt,  either  actually  or  potentially, 
in  his  control  or  within  his  possession  as  security,  and  he  does 
not  choose  to  retain  it  and  relinquishes  it,  the  surety  is  dis- 
charged.150 And  so  in  some  States,  where  the  estate  of  a  de- 
ceased person  is  sufficient  to  pay  all  claims,  the  failure  of  a 
holder  of  the  decedent's  note  to  file  the  same  as  a  claim  against 
the  estate,  will  operate  to  release  the  surety  thereon.151  But  this 
does  not  appear  to  be  the  general  rula152 

§  129.  Surety  Signing  Upon  Condition. — A  surety  may 
sign  upon  the  understanding  that  certain  conditions  shall  be  per- 
formed before  he  shall  become  liable ;  and  if  the  creditor  knows 
of  these  conditions,  and  they  are  not  fulfilled,  the  surety  is  dis- 
charged.153 And  so  a  guarantor  signing  a  guaranty  of  the  pay- 
ment of  a  draft  or  bill,  has  the  right  to  impose  as  a  condition  to 
its  acceptance,  or  binding  force  on  him,  that  a  certain  other  per- 
son named  shall  bcome  his  co-guarantor,  and  the  acceptance  by 
the  obligee  with  notice  of  the  condition  will  create  no  liability  on 
such  guaranty  if  the  condition  is  not  performed.154  Because  in 
such  cases  of  guaranty  or  suretyship,  the  surety  can  sign  upon 
condition,  and  if  such  condition  is  known  to  the  obligee,  he  takes 
the  instrument  and  is  a  party  to  the  contract,  and  a  contract  ex- 
ists between  him  and  the  surety  that  it  shall  be  fulfilled  before 
he  becomes  liable;  if  not  fulfilled  the  surety  is  discharged.155 

160  Reed  v.  Garvin,  12  Serg.  &  R.  100;  Hutchinson  v.  Woodwell,  107 
Pa.  St.  509. 

151  Waughop  v.  Bartlett,  165  111.  124. 

152  Moore  v.  Gray,  26  Ohio  St.  525 ;  Jackson  v.  Benson,  54  Iowa,  654. 

153  Caldwell  v.  Heitshu,  9  Watts  &  S.  51;  State  v.  Welbes  (S.  Dak.),  81 
N.  W.  Rep.  629;  Jones  v.  Keer,  30  Ga.  93;  Cunningham  v.  Wrenn,  23  111. 
64;  Clay  v.  Edgerton,  19  Ohio  St.  549;  Linn  County  v.  Farris,  52  Mo.  75; 
Milliken  v.  Callahan,  69  Tex.  205. 

364  Belleville  Sav.  Bank  v.  Bornman,  124  111.  200. 

165  Rhode  v.  McLean,  101  111.  467;  Hull  v.  Parker,  37  Mich.  590;  Benton 
v.  Martin,  52  N.  Y.  570;  Lovell  v.  Adams,  5  Humph.  133;  Gibbs  v.  Johnson, 
63  Mich.  671;  Miller  v.  Stern,  12  Pa.  St.  383. 


94  SURETYSHIP  AND  GUARANTY.  (Ch.  5 

§  130.  Surrendering  Security. — The  right  of  a  surety  does 
not  depend  upon  the  contract,  but  upon  the  equities  arising  out 
of  the  circumstances  of  the  case,  and  the  creditor  is  affected  by 
knowledge  of  the  true  relation  of  the  debtors  acquired  at  any 
time  before  he  does  the  act  which  alters  the  position  of  the  surety ; 
and  one  who  makes  a  promissory  note  for  the  accommodation 
of  another  is  a  surety  within  this  rule.156  Hence,  if  the  creditor 
has  taken  a  lien  on  property  for  the  debt,  or  has  taken  the  prop- 
erty of  the  principal  for  the  benefit  of  himself  and  surety,  and 
then  releases  the  lien  or  gives  up  the  property  without  the  con- 
sent of  the  surety,  the  surety  is  discharged  to  the  extent  of  such 
lien  or  property.157  So  the  surety  is  entitled  to  collateral  secur- 
ity received  by  the  creditor  from  the  principal  debtor,  and  if  the 
creditor,  knowing  the  relations  between  the  debtors,  surrenders 
part  of  such  property  or  security  without  the  consent  of  the 
surety,  the  surety  is  discharged  to  that  extent,  although  the  rela- 
tion of  debtor  and  creditor  does  not  appear  on  the  face  of  the 
debt,158  because  the  surety  is  entitled  to  be  subrogated  to  all  the 
rights  and  securities  of  the  creditor.159  And  if  in  releasing  the 
collateral  or  lien  a  material  alteration  is  made  in  the  contract, 
the  surety  is  absolutely  released.160  But  the  surety  is  not  dis- 
charged by  the  act  of  the  creditor  in  releasing  the  security,  to 
which  the  principal  debtor  had  no  title.161 

§  131.  Taking  Property  by  Attachment  and  Execution. 
— The  creditor  can  acquire  possession  of  property  by  attachment 
or  }  y  levy  of  execution,  and  when  he  has  thus  acquired  posses- 

w  Bradford  v.  Hubbard,  8  Pick.   155. 

iM  Bronson  v.  Machine  Co.,  105  Ga.  342;  Kirkpatrick  v.  Howk,  80  111. 
122;  Hoss  v.  Crouch  (Tcnn.),  48  S.  W.  Rep.  724;  Baker  v.  Briggs,  8  Pick. 
122;  Rogers  v.  Trustees,  46  111.  428;  Neff's  Appeal,  9  Watts  &  S.  36;  Bank 
v.  Grifford,  79  Iowa,  300. 

■"Guild  v.  Butler,  127  Mass.  386. 

,r"  Bangs  v.  Strong,  4  N.  Y.  315;  Hodgson  v.  Shaw,  3  Mylne  &  K.  183; 
Cummings  v.  Little,  45  Me.  183;  Saline  County  v.  Brice,  65  Mo.  63. 

»Polak  v.  Everett,  1  Q.  B.  D.  669;  Watts  v.  Shuttleworth,  7  Hurl. 
&  S.  353. 

1,1  First  Nat.  Bank  v.  Parsons   (W.  Va.),  32  S.  E.  Rep.  271. 


§    132)  DISCHARGE    OF    SURETY.  95 

sion,  he  should  not  afterwards  in  any  manner  relinquish,  the 
same  or  consent  to  a  course  of  proceedings  that  will  have  that 
effect ;  and  if  he  does  so  the  surety  will  be  discharged  to  the 
extent  corresponding  with  the  value  of  the  property  released.162 
But  when  the  execution  creates  no  lien  upon  the  property,  if 
no  levy  is  made,  the  delay  of  the  creditor  to  have  it  levied  will 
not  release  the  surety.103  But  if  the  execution,  as  soon  as  issued, 
becomes  a  lien  upon  the  property,  then  the  surety  is  released,  if 
the  creditor  abandons  the  proceedings,  to  the  amount  which 
could  be  realized  by  the  levy  and  sale  of  the  property.164 

Where  the  statute  does  not  intervene,  the  liability  of  the 
surety  is  not  changed  by  the  insolvency  and  discharge  of  the 
principal  in  the  bond.165  So  when  the  attachment  has  gone  to 
judgment,  and  then  the  principal  is  discharged  in  bankruptcy 
or  insolvency,  the  surety  is  still  liable,166  because  the  bond  is 
not  affected  by  contingencies  which  might  have  destroyed  the 
attachment  if  no  bond  had  been  given.167  But  an  execution 
levied  upon  property,  the  sale  of  which  would  bring  no  returns, 
may  be  abandoned  without  discharging  the  surety.168 

§  132.  Failure  to  Apply  Securities. — The  delay  in  apply- 
ing securities,  or  not  applying  them  at  all,  may  discharge  the 
surety.  So  when  the  creditor  recovers  a  judgment  against  the 
debtor  and  surety,  and  execution  is  levied  upon  the  principal's 
property,  and  then  the  creditor  releases  such  property,  the  surety 

16JMaquoketa  v.  Willey,  35  Iowa,  323;  Templeton  v.  Shakley,  107  Pa.  St. 
370;  Sherraden  v.  Parker,  24  Iowa,  28. 

^Hi-own  v.  Clianibers,  G3  Tex.  131;  Crawford  v.  Gaulden,  33  Ga.  17:i: 
Jerauld  v.  Trippet,  (i2  Ind.  122;  Manice  v.  Duncan,  12  La.  Ann.  715: 
Hunter  v.  Clark.  28  Tex.  1(13:  Morrison  v.  Bank,  65  N.  H.  253. 

104  Robeson  v.  Roberts,  20  Ind.  155. 

100Gass  v.  Smith,  6  Gray,  112. 

1M  Bernheimer  v.  Charak,  170  Mass.  179;  Rosenthal  v.  Perkins,  123  Cal. 
240;  McCombs  v.  Allen,  82  N.  Y.  114;  Easton  v.  Ormsby,  18  R.  I.  309. 

167  Bernheimer  v.  Charak,  170  Mass.  179. 

168  Moss  v.  Pittinger,  3  Minn.  217;  Commercial  Bank  v.  Bank,  11  Ohio, 
444;  Moss  v.  Craft,  10  Mo.  720.     See  sec.  213  et  seq. 


96  SURETYSHIP  AND  GUARANTY.  (Ck  5 

is  discharged  to  extent  of  the  value  of  such  property;169  loss  of 
securities  by  the  negligent  act  of  the  creditor  releases  the  surety 
to  the  extent  of  such  loss.170  So  where  a  creditor  receives  notes, 
mortgages,  or  property,  in  pledge  for  a  debt,  such  securities  must 
be  regarded  as  an  indemnity  to  the  creditor,  and  to  the  person 
who  may  have  become  bound  as  surety  for  the  original  debt,  and 
the  surety  has  the  right  to  exact  of  the  creditor  proper  care  and 
diligence  in  the  management,  and  collection  of  the  collaterals, 
and  any  waste  or  misapplication  of  the  collateral  security  will 
operate  as  a  release  of  the  surety  to  the  amount  of  the  loss 
actually  sustained.171 

§  133.  Release  of  Co-surety. — Co-sureties  are  liable  to  con- 
tribution among  themselves,  and  so  a  discharge  of  one  of  them 
from  his  obligation,  if  the  others  are  not  discharged,  will  not 
release  him  from  the  liability  to  contribute  for  their  indem- 
nity.172 Where  the  release  of  one  of  several  co-obligors  shows 
upon  its  face,  in  connection  with  the  surrounding  circumstances, 
that  it  was  the  intention  of  the  parties  not  to  release  his  co- 
obligors,  such  intention  will  be  carried  out.173  So  in  relation 
to  sureties ;  and  a  receipt  by  the  creditor  to  a  surety  of  one-half 
of  the  amount  due  on  a  joint  and  several  bond,  does  not  release 
the  other  surety,  but  he  is  liable  for  only  one-half  of  the  original 
debt.174  That  is,  when  the  obligation  of  the  sureties  is  joint 
and  several,  the  discharge  of  one  of  them  does  not  release  the 
others  from  payment  of  their  proper  proportion  of  the  debt.175 
Thus,  where  one  of  two  sureties  is  released  from  liability,  it 
relieves  the  other  surety  from  liability  for  one-half  of  the  debt, 

189  Dixon  v.  Ewing,  3  Ohio,  280:  Hubbell  v.  Carpenter,  5  Barb.  520;  Day  v. 
Ramey,  40  Ohio  St.  446. 

170  Barrett  v.  Bass,  105  Ga.  421. 

1,1  Phares  v.  Barbour,  49  111.  370;  Hall  v.  Hoxsey,  84  111.  610;  Crim  v. 
Fleming,  101  Ind.  154;  Bank  v.  Gifford.  70  Iowa,  300;  Black  Eiver  Bank  v. 
Page.  44  X.  V.  453. 

172cia|ip  v.  Rice,  i">  Gray,  557. 

173  Parmaler  v.  Lawrence.  44  111.  405:  Moore  v.  Stamvood,  OS  111.  005. 

1T*Schock  v.  Miller.   10  Pa.  St.    10! . 

'"Glasscock  v.  Hamilton,  02  UV\.  I  l.'j. 


§    134,  135)  DISCHARGE   OF    SURETY.  97 

that  being  the  proportion  which  the  surety  who  is  released  would 
have  to  pay  as  between  himself  and  his  co-surety,  had  he  not  been 
released.176  But  when  the  debt  is  joint,  the  release  of  one  joint 
debtor  discharges  the  others,  and  extrinsic  evidence  will  not  be 
admitted  to  explain  the  contract  as  a  covenant  not  to  sue.177 

§  134.  Failure  of  Creditor  to  Sue  Principal. — Mere  for- 
bearance or  indulgence  by  a  creditor  to  sue  a  principal  will  not 
release  the  surety.  Because  the  surety  is  not  put  to  any  hazard 
by  forbearance  of  the  creditor,  as  he  has  it  in  his  power  to  pro- 
tect himself.  He  may  either  pay  the  debt,  and  thus  become  sub- 
rogated to  the  rights  of  the  securities  of  the  creditor,  or  he  may 
compel  the  creditor  to  sue.  Mere  delay  in  enforcing  the  debt 
against  the  principal  without  fraudulent  connivance  between  the 
maker  and  payee,  does  not  release  the  surety ;  otherwise  if  there 
is  an  agreement  on  a  new  consideration  for  an  extension.179 
And  the  surety  is  not  discharged  by  the  creditor's  act  in  agreeing 
to  continue  the  suit  against  the  principal  where  the  surety  is  not 
actually  prejudiced  thereby.160 

§  135.  Disaffirmance  of  Contract  by  Principal. — Prin- 
cipals under  disability  may  disaffirm  their  contract  when  the  dis- 
ability is  removed.  The  general  rule  is  that  where  a  party  becomes 
surety  for  an  infant  or  other  party  under  disability,  he  is  bound, 
though  his  principal  is  not.181      But  to  this  rule  there  are  excep- 

176  Hallock  v.  Yankey,  102  Wis.  41;  Waggoner  v.  Dyer,  11  Leigh,  384; 
Klingensmith  v.  Klingensmith,  31  Pa.  St.  460;  Ide  v.  Churchill,  14  Ohio 
St.  372;  Gosserand  v.  LaCour,  8  La.  Ann.  75;  Walch  v.  Miller,  51  Ohio 
St.  462. 

"'Clark  v.  Mallory,  185  111.  227. 

"'Villars  v.  Polner,  67  111.  204;  Bank  v.  State,  62  Md.  88;  Eiekhoff  v. 
Eickenbary,  52  Neb.  332;  Bell  v.  Walker,  54  Neb.  222;  Marshall  v.  Hudson, 
9  Yerg.  58;  Field  v.  Brokaw,  148  II!.  654;  Bull  v.  Coe,  77  Cal.  54;  Board  v. 
Bank   (Minn.),  77  N.  W.  Rep.  815. 

mGrier  v.  Flitcroft   (N.  J.  Ch.),  41  At.  Rep.  425. 

180  First  Nat.  Bank  v.  Parsons  (W.  Va.),  32  S.  E.  Rep.  271;  Eiekhoff  v. 
Eickenbary,  52  Neb.  332. 

181  Jones  v.  Crossthwait,  17  Iowa,  393;  Allen  v.  Berryhill,  27  Iowa,  534. 

7 


98  SURETYSHIP  AND  GUARANTY.  (Ch.  5 

tions.  Thus,  when  the  principal  has  the  right  to  disaffirm  the 
■contract,  and  returns  the  consideration  received  under  it,  the 
surety  is  thereby  discharged.182  And  so  a  surety  upon  a  prom- 
issory note  of  a  minor  is  not  liable  thereon,  where  the  minor, 
upon  attaining  his  majority,  disaffirms  the  contract  and  returns 
the  property  for  the  purchase  price  for  which  the  note  was 
given.183 

§  136.  Fraud  Upon  the  Principal. — The  right  of  the  surety 
to  plead  that  the  contract  of  his  principal  was  procured  by  fraud 
is  a  question  upon  which  the  courts  are  divided.  Many  courts 
hold  that  the  plea  is  personal  to  the  principal,  while  others  sus- 
tain the  right  of  the  surety  to  maintain  such  defense.  So  in 
some  States  sureties  cannot  plead  duress  or  fraud  upon  their 
principal  in  discharge  of  their  liability.184  On  the  other  hand, 
it  is  held  that  the  defense  that  a  contract  was  fraudulent  as  to 
the  principal  may  be  pleaded  by  the  surety.185 

§  137.  Substitution  of  Securities. — A  surety  is  not  re- 
leased by  the  substitution  by  the  creditor  of  one  collateral  secur- 
ity for  another,  when  made  in  good  faith,  apparently  for  the 
benefit  of  all  concerned.186  Thus,  the  release  of  part  of  certain 
real  estate  in  order  to  make  a  title  to  one  who  purchases  it  for 
full  value,  upon  condition  that  the  purchase  money  should  be 
applied  to  the  extinguishment  of  a  mortgage  that  was  a  prior 
lien  upon  the  whole  estate,  does  not  release  the  surety,  because 
the  transaction  bettered  his  condition.187  So  the  surrender  of  a 
life  policy  held  as  collateral,  upon  receipt  of  its  present  value, 

"'Baker  v.  Kennett,  54  Mo.  82;  Patterson  v.  Cone,  61  *Mo.  439;  Keokuk 
County  State  Bank  v.  Hall,  106  Iowa,  540. 

198  Baker  v.  Kennett,  54  Mo.  82;  Keokuk  County  State  Bank  v.  Hall,  105 
Iowa,  540. 

'"Hummer  v.  People,  16  111.  358;  Peacock  v.  People,  83  111.  331;  Robin- 
son v.  Gould,  11  Cush.  55;  Thompson  v.  Lockwood,  15  Johns.  259. 

,w  Strong  v.  Grannis,  26  Barb.  122;  Osborn  v.  Robbins,  36  N.  Y.  365; 
Fisher  v.  Shattuck,  17  Pick.  252;  Griffith  v.  Sitgreaves,  90  Pa.  St.  161. 

,M  State  Bank  v.  Smith,  155  N.  Y.  185. 

IW  Neff's  Appeal,  9  Watts  &  S.  36. 


§    138)  DISCHARGE    OF    SURETY.  99 

after  the  principal  had  become  bankrupt,  and  it  is  doubtful 
whether  he  could  keep  up  the  policy,  does  not  discharge  the 
surety.188  So  where  a  creditor  releases  a  levy  on  property  of 
the  principal  debtor,  worth  $90,  in  consideration  of  an  order 
worth  $100,  that  could  not  have  been  reached  by  execution,  it 
does  not  discharge  the  surety,  because  he  is  benefited  by  the 
transaction.189  And  so  the  diversion  of  securities  which  results 
in  no  injury  to  the  surety  does  not  affect  his  liability  for  payment 
of  the  debt,  if  the  accompanying  right  of  subrogation  would  be 
of  no  value.190 

§  138.  Payment  of  Consideration  in  Installments — 
Building  Contracts. — Where  a  contract  is  paid  in  install- 
ments, the  installments  must  be  made  as  stipulated,  and  not  iu 
advance.  Thus,  a  surety  on  a  building  contract,  where  the  prin- 
cipal is  to  be  paid  in  installments,  will  be  discharged  if  the 
principal  is  paid  faster  than  the  contract  provides.191  So  by 
paying  a  party  an  installment  before  it  is  due  under  the  contract, 
the  owner  of  the  building  discharges  the  surety  of  the  contractor 
from  his  obligations.192  Such  payment  is  prejudicial  to  the 
surety,  because  it  diminishes  the  security  which  the  owner  had 
and  which  he  should  have  availed  himself  of  to  the  benefit  of  the 
surety,  and  hence,  the  surety  is  damaged  to  the  amount  of  the 
payment  in  advance,  and  therefore  discharged.193  So  in  build- 
ing contracts,  if  the  contractor  is  paid  in  advance  instead  of  by 
installments  as  the  work  progresses,  the  sureties  are  thereby  dis- 
charged.194    But  it  is  held  if  the  sureties  can  receive  no  injury 

188Coates  v.  Coates,  33  Beavan,  249. 
18»  Thomas  v.  Cleveland,  33  Mo.  126. 
1,0  Blydenburgh  v.  Bingham,  38  N.  Y.  371. 

181  General  Steam  Nav.  Co.  v.  Rolt,  6  C.  B.,  N.  S.  550 ;  Calvert  v.  Dock  Co., 
2  Keen,  638. 

192  Welch  v.  Hubchmitt,  61  N.  J.  L.  57. 

193  Chester  v.  Leonard,  68  Conn.  495. 

1MCowdery  v.  Hahn  (Wis.),  81  N.  W.  Rep.  882;  Bragg  v.  Shaw,  49  Cal. 
131;  Gray  v.  School  Dist.,  35  Neb.  438:  Carson,  etc.,  Asso.  v.  Miller,  16 
Nev.  327;  Simonson  v.  Grant,  36  Minn.  439;  Ryan  v.  Morton,  6.")  Tex.  258; 
Evans  v.  Graden,  125  Mo.  72;  Board  v.  Branhan,  57  Fed.  Rep.  179;  Calvert 
V.  Dock  Co.,    2  Keen.  638 ;  Peters  v.  Mackay,  20  Wash.  172. 


100  SURETYSHIP    A>'D    GUARANTY.  (CL  5 

from  an  advanced  payment  they  are  not  discharged ;  as  where 
the  owner  of  the  new  building  loans  the  contractor  money  and 
takes  his  due  bill,  and  pays  money  to  him  for  materials  as  soon 
as  delivered,  and  then  makes  a  settlement  at  the  time  of  the  first 
payment  and  takes  back  the  due  bill.135 

§  139.  Tendeb  of  Payment. — When  the  principal  at  matur- 
ity of  the  debt,  tenders  the  amount  due  to  the  creditor,  who  re- 
fuses it,  this  discharges  the  surety,196  and  such  tender  need  not 
be  kept  good  nor  paid  into  court.197  And  so  if  the  surety  ten- 
ders payment  and  the  creditor  refuses  it,  he  is  discharged  and 
need  not  keep  the  tender  good.198 

^Hand  Mfg.  Co.  v.  Marks  (Ore.),  59  Pac.  Rep.  549.  See,  also,  Cochran 
v.  Baker  (Oreg.),  56  Pac.  Rep.  641. 

186  Smith  v.  Loan  Ansa,  119  N.  Car.  257. 

"■  Smith  v.  Loan  Asso.,  119  N.  Car.  257:  Mitchell  v.  Roberts,  17  Fed. 
Rep,  776. 

^O'Connor  v.  Brag!  v.  112  Cal.  31:  Solomon  r.  Reese,  34  Cal.  36;  Hayes 
r.  Joseph!,  26  Cal,  535. 


§    140)  BIGHTS  AND  REMEDIES  OF  SURETY.  101 

CHAPTER  VI. 

EIGHTS  AND  REMEDIES   OF   SURETY  AS   TO   CREDITOR. 

§  140.  The  Contract  in  General. — One  who  becomes 
surety  for  another  must  ordinarily  be  presumed  to  do  so  upon 
the  belief  that  the  transaction  between  the  principal  parties  is 
one  accruing  in  the  usual  course  of  business  of  that  description, 
subjecting  him  only  to  risks  attending  it.  The  principal  debtor 
is  presumed  to  know  that  such  will  be  his  undertaking,  and  that 
he  will  act  upon  it  unless  he  is  informed  that  there  are  some 
extraordinary  circumstances  affecting  the  risk.  To  receive  a 
surety  known  to  be  acting  upon  the  belief  that  there  are  no 
unusual  circumstances  by  which  his  risk  will  be  materially  in- 
creased, well  knowing  that  there  are  such  circumstances,  and 
having  a  suitable  opportunity  to  make  them  known  and  with- 
holding such  information,  is  a  legal  fraud  by  which  the  surety 
will  be  relieved  from  his  contract.1  If  the  person  giving  the 
credit  makes  use  of  any  artifice  to  throw  the  surety  off  his  guard 
and  lull  him  into  a  false  security,  and  he  is  thereby  deceived  to 
his  detriment,  he  will  be  discharged.2 

If  the  creditor  knows  or  has  good  ground  for  believing  that 
the  surety  is  being  deceived  or  misled,  or  that  he  was  induced  to 
enter  into  the  contract  in  ignorance  of  facts  materially  increasing 
his  risk,  of  which  the  creditor  has  knowledge,  and  he  has  the 
opportunity  before  accepting  the  undertaking  to  inform  him  of 
such  facts,  good  faith  and  fair  dealing  demand  that  he  should 
make  such  disclosure,  and  if  the  creditor  accepts  the  contract 
without  doing  so,  the  surety  may  afterwards  avoid  it.3 

1  Sooy  v.  State,  39  N.  J.  L.  135;  Franklin  Bank  v.  Cooper,  36  Me.  179. 

*  Roper  v.  Sangamon  Lodge,  91  111.  518;  Railton  v.  Matthews,  10  CI.  &  F. 
934;  Wayne  v.  Bank,  52  Pa.  St.  250;  Lee  v.  Jones,  17  C.  B.,  N.  S.  482; 
Smith  v.  Joslyn,  40  Ohio  St.  409;  Taylor  v.  Lohman,  74  Ind.  418. 

•Hamilton  v.  Watson,  12  CI.  &  F.  109;  Franklin  Bank  v.  Stevens,  39  Me. 
542;  Booth  v.  Storrs,  75  111.  438;  Ham  v.  Greve,  34  Ind.  18;  Bank  v. 
Andrews,  65  Iowa,  692. 


102  SURETYSHIP  AND  GUARANTY.  (Ch.  0 

§  141.  Diligence  of  Surety. — If  the  surety  before  becoming 
such  applies  to  the  creditor  for  information  relating  to  the  risk 
about  to  be  assumed,  the  creditor,  if  he  answers  at  all,  must  dis- 
close all  the  facts  which  he  knows  in  that  regard ;  and  he  can  do 
nothing  to  deceive  or  mislead  the  surety  without  violating  the 
agreement.  Whether  a  creditor  is  bound  to  volunteer  disclos- 
ures to  one  about  to  become  a  surety,  depends  upon  circum- 
stances of  the  case.  If  there  is  nothing  in  the  circumstances  to 
indicate  that  the  surety  is  being  misled  or  deceived,  or  is  ignor- 
ant of  facts  materially  affecting  the  risk,  the  creditor  is  not 
bound  to  seek  the  surety  and  inform  him  of  the  facts.  But  if  he 
knows,  or  has  good  ground  to  know,  that  the  surety  is  being  de- 
ceived, or  has  entered  into  the  contract  in  ignorance  of  such 
facts,  and  has  an  opportunity  to  disclose  them  to  the  surety 
before  accepting  the  obligation,  he  must  do  so,  or  the  surety  may 
afterwards  avoid  the  contract  if  he  has  used  due  diligence.4 

It  is  the  duty  of  the  surety  to  look  out  for  himself,  and  to 
ascertain  the  nature  of  the  obligations  embraced  in  the  under- 
taking;5 and  so  the  creditor  is  not  bound  to  inform  the  surety 
of  the  insolvency  of  the  principal.6 

§  142.  Facts  Concealed — Not  Connected  With  the  Con- 
tract.— In  order  that  a  failure  to  communicate  facts  by  the 
creditor  to  the  surety  in  respect  to  the  subject-matter  of  the  pro- 
posed contract  should  have  the  effect  of  fraud  upon  the  surety 
and  vitiate  the  contract,  it  must  be  facts  which  necessarily  have 
the  effect  to  increase  the  responsibility  or  operate  to  his  preju- 
dice.7 To  vitiate  a  bond  on  the  ground  of  fraud  by  the  obligee, 
there  must  be  a  fraudulent  concealment  or  something  material 
for  the  surety  to  know.8  The  law  simply  requires  from  the 
obligee  to  the  surety  upon  the  bond  good  faith  and  fair  dealing. 

♦Pidock  v.  Bishop,  3  Barn.  &  C.  605;  Franklin  Bank  v.  Cooper,  39  Me. 
542;   Stone  v.  Compton,  5  Bing.  N.  C.  142. 

"Casoni  v.  Jerome,  58  N.  Y.  321. 

•Roper   v.   Sangamon   Lodge,   91    111.   518;    Ham   v.   Greve,   34   Ind.    18; 
Farmers',  etc.,  Bank  v.  Braden,  L45  Pa.  St.  473. 
i,    T  Comstock  v.  Gage,  91  111.  328;  Bostwick  v.  Van  Voorhis,  91  N.  Y.  353. 

•  Atlas  Bank  v.  Brownell,  9  R.  I.  168. 


§  143,  144)   rights  and  remedies  of  surety.  103 

§  143.  Facts  Developed  Subsequent  to  the  Contract. — 
In  the  case  of  a  continuing  guaranty  for  the  undertaking  of  a 
servant,  if  the  master  discovers  acts  of  dishonesty  in  the  servant, 
and  afterwards  continues  him  in  his  service  without  notice  to  the 
surety,  the  latter  is  discharged  as  to  further  dishonesty,  from 
the  time  of  discovery.9  Because  the  employer  impliedly  stip- 
ulates that  he  will  not  knowingly  retain  such  clerk  or  agent  in 
his  service  after  a  breach  of  the  guaranty  justifying  his  dis- 
charge, and  if  he  retains  him  after  such  breach,  the  surety  will 
not  thereafter  be  liable.10  But  it  is  said  that  mere  passiveness 
on  the  part  of  the  creditor  in  not  enforcing  his  remedy  will  not 
of  itself  discharge  the  surety;  nor  will  failure  or  negligence  to 
give  notice  to  the  surety  of  the  principal's  prior  default.  The 
creditor  under  such  circumstances  is  not  bound  to  anticipate 
inquiry  by  disclosure.11 

Mere  forbearance  by  the  creditor  to  the  principal,  however 
prejudicial  to  the  surety,  will  not  discharge  him.  The  same  rule 
applies  to  sureties  for  officers  of  corporations.  It  is  not  the  duty 
of  the  corporation  to  give  notice  to  the  sureties  of  the  principal's 
failure  to  make  returns  for  money  received  and  disbursed.12 

§  144.  Set-off  and  Recoupment. — The  decisions  are  con- 
flicting as  to  whether  the  surety  can  set  off  against  the  creditor  a 
debt  due  by  the  creditor  to  the  principal.  In  many  cases  it  is 
held  that  such  can  be  done.  Thus,  it  is  held  that  whatever 
defense  by  way  of  recoupment  will  avail  the  principal  will  also 
avail  the  surety.13  The  rule  is  that  demands  cannot  be  set  off 
unless  they  are  mutual  and  between  the  two  parties  to  the  action ; 
that  is,  that  a  joint  debt  cannot  be  set  off  against  a  separate  debt, 
nor  a  separate  debt  against  a  joint  debt.     But  an  exception  is 

•Phillips  v.  Foxall,  L.  R.  7  Q.  B.  666;  Enright  v.  Falvey,  4  L.  R.  Ir.  397; 
Sanderson  v.  Osten,  L.  R.  8  Ex.  73. 

10Rapp  v.  Ins.  Co.,  113  111.  390;  Dinsmore  v.  Tidhall,  34  Ohio  St.  411. 

11  Pickering  v.  Day,  3  Houst.  474,  533;  Peel  v.  Tatlock,  1  Bos.  &  P.  419. 

12Orme  v.  Young,  1  Holt,  N.  P.  84;  Pittsburg,  etc.,  R.  R.  Co.  v.  Shaeffer, 
59  Pa.  St.  350;  Watertown  Ins.  Co.  v.  Simmons,  131  Mass.  85;  Richmond, 
etc.,  R.  R.  Co.  v.  Kasey,  30  Gratt.  218;  Mayor  v.  Kennett,  12  Lea,  700. 

11  Waterman  v.  Clark,  76  111.  428 ;  McHardy  v.  Wadsworth,  8  Mich.  350. 


104  SURETYSHIP  AND  GUARANTY.  (Ch.  6 

made  in  an  action  against  the  principal  and  his  surety,  so  a  claim 
of  the  principal  against  the  creditor  may  be  set  off.14  But  other 
decisions  hold  that  the  surety  alone  cannot  set  off  a  claim  of  the 
principal  against  the  creditor,  because  in  such  case  it  is  the 
right  of  the  principal  to  set  up  a  set-off  if  sued,  or  bring  his 
separate  action,  and  the  surety  cannot  make  the  election  for  the 
principal  or  do  anything  to  impair  his  right  of  recovery  in  a 
separate  action.15 

But  it  is  held  that  insolvency  of  one  of  the  parties  is  sufficient 
ground,  in  equity,  for  an  allowance  of  set-off ;  and  though  one  of 
the  parties  seeking  the  set-off  be  a  surety  for  the  other,  equity 
will  adjudge  it  in  favor  of  both  against  a  demand  collectible  of 
both.16 

If  the  principal  debtor  be  a  party  to  the  action  against  a 
surety,  and  the  former  is  insolvent,  the  surety  may  set  off  against 
the  debt  sued  on,  a  debt  due  from  his  creditor  to  the  principal 
debtor.  And  if  the  action  be  against  the  surety  alone,  the  prin- 
cipal may  intervene  for  the  purpose  of  defeating  the  recovery 
by  the  creditor,  and  for  that  purpose  may  set  off  a  debt  due  him 
from  the  creditor.17  And  the  principal  who  is  insolvent  cannot 
collect  a  debt  which  the  surety  owes  him  without  indemnifying 
the  surety.  He  may  use  his  liability  to  the  principal  as  an 
equitable  set-off  against  his  debt  to  the  principal.18 

§  145.  Compelling  Creditor  to  Bring  Suit. — The  cred- 
itor is  under  an  equitable  obligation  to  obtain  payment  from  the 
principal  if  he  is  able  to  pay  the  debt.     And  equity  will  inter- 

14  Concord  v.  Pillsbury.  33  N.  H.  310;  Hayes  v.  Cooper.  14  111.  App.  490; 
Himrod  v.  Baugh,  85  111.  435:  Cole  v.  Justice,  8  Ala.  793;  Hollister  v.  Davis, 
54  Pa.  St.  508;  Downer  v.  Dana.  17  Vt.  518:  Loring  v.  Morrison,  15  App. 
D.  498;  Van  Etten  v.  roster,  48  Neb.  152:  Bechervaise  v.  Lewis,  L.  R.  7 
C.  P.  372. 

"Gillespie  v.  Torrance,  25  N.  Y.  306;  State  v.  George,  150  Mo.  1; 
Phoenix  Iron  Works  v.  Rhea,  98  Tenn.  461  ;  Graff  v.  Kahn,  18  111.  App.  485. 

"Smith  v.  Felton,  43  X.  V.  419:  Coffin  v.  McLean,  80  N.  Y.  560. 

"Becker  v.  Northwav.  44  Minn.  61. 

"Walker  v.  Dicks,  B0  N".  Oar.  263;  Scott  v.  Timberlake,  83  N.  Car.  382; 
Merwin  v.  Austin,  58  Conn.  22;  Fearle  v.  Dillard,  5  Leigh  (Va.),  30;  Tus- 
cumbia  v.  Rhode-.  8   Ala.  206. 


§    146)  EIGHTS    AND    REMEDIES    OF    SURETY.  105 

pose  for  a  good  cause  shown  to  compel  the  creditor  to  sue  the 
principal  before  resorting  to  the  surety.19  But  this  action  on 
the  part  of  the  surety  is  limited  ordinarily  to  cases  where  his 
character  as  surety  stands  upon  the  face  of  the  instrument 
itself;  and  also  where  he  agrees  to  indemnify  the  principal, 
and  also  offers  to  pay  whatever  the  principal  may  fail  to  pay 
under  such  procedure.20  So,  where  the  statute  does  not  control, 
and  the  debt  has  become  payable,  the  surety  may  file  a  bill  in 
equity  to  compel  the  creditor  to  proceed  against  the  principal 
for  payment  of  the  debt,  and  thereby  relieve  himself  against 
liability.24 

In  some  States  it  is  provided  by  statute  that  by  service  of 
written  notice  upon  the  creditor  the  surety  can  compel  him  to  sue 
the  principal,  and  if  the  creditor  fails  to  comply  with  the  notice, 
the  surety  is  discharged.22  But  the  surety  cannot  relieve  him- 
self from  liability  by  requiring  the  creditor  to  sue  the  principal 
only  where  the  cause  of  action  has  accrued  against  the  prin- 
cipal.23 And  such  statute  is  only  applicable  to  contracts  in 
writing,  binding  the  surety,  and  not  to  contracts  of  suretyship 
arising  from  implication.24  And  the  notice  to  sue  must  be 
delivered  to  the  creditor  in  person,  and  not  to  his  agent.25  And 
where  there  are  twTo  or  more  sureties  a  notice  under  the  statute 
to  sue  given  by  one  surety  in  his  own  behalf  will  not  operate  to 
discharge  another  surety  who  does  not  join  him  in  the  notice.26 

§  146.  Effect  of  Notice  by  Surety  to  Creditor  to  Pro- 
ceed to  Collect  Debt. — It  is  provided  in  many  States  that 

19Huey  v.  Pinney,  5  Minn.  310;  King  v.  Baldwin,  17  Johns.  384;  Wise  v. 
Shepherd,  13  111.  41. 

20  In  re  Babcock,  1  Story,  398. 

"Irick  v.  Black,  17  N.  J.  Eq.  189;  Hurley  v.  Furey,  54  N.  J.  Eq.  177; 
King  v.  Baldwin,   17  Johns.  384. 

22  Barnes  v.  Sammons,  128  Ind.  596. 

58  Imming  v.  Fiedler,  8  111.  App.  256. 

24  Fish  v.  Glover,  154  111.  86. 

*  Bartlett  v.  Cunningham,  85  111.  22. 

*  Wilson  v.  Tebbetts,  29  Ark.  579;  Letcher  v.  Yantes,  3  Dana,  160; 
Routan  v.  Lacey,  17  Mo.  399;  Klingensmith  v.  Klingensmith,  31  Pa.  St. 
460;  Barrow  v.  Shields,  13  La.  Ann.  57;  Alford  v.  Baxter,  36  Vt.  158; 
Trustees  v.  Southard,  31  111.  App.  359. 


106  SURETYSHIP  AND  GUARANTY.  (Cll.  6 

a  written  notice  from  the  surety  to  the  creditor,  after  the  debt 
is  due,  to  proceed  forthwith  against  the  principal,  will  discharge 
the  surety  if  the  creditor  fails  to  heed  and  act  upon  such 
notice.27  And  in  some  States  such  notice  is  not  required  by 
statute,  but  the  effect  is  the  same.28 

The  notice,  in  order  to  discharge  the  surety,  must  be  clear  and 
explicit,  so  that  the  creditor  can  fully  understand  its  meaning. 
The  notice  must  be  positive  that  he  will  consider  himself  dis- 
charged unless  the  suit  is  brought,29  and  collection  to  be  made 
by  due  process  of  law.30 

If  the  principal  is  a  non-resident  at  the  time  the  notice  is 
given,  such  notice  does  not  discharge  the  surety.31  If  the  cred- 
itor is  ignorant  of  the  residence  of  the  principal  upon  receiving 
notice  to  sue  from  the  surety,  it  is  his  duty  to  use  reasonable 
diligence  to  ascertain  such  residence.32  In  some  States,  notice 
given  to  the  creditor  will  not  release  the  surety,  though  the  prin- 
cipal afterwards  becomes  insolvent.  The  surety's  remedy  is  to 
pay  the  debt  himself  and  then  sue  the  principal.33 

§  147.  Creditor's  Promise  to  Look  to  the  Principal 
Only. — A  parol  promise  of  the  creditor  to  the  surety,  after  the 
debt  is  due  that  he  will  exonerate  the  surety  and  look  to  the 
principal  only,  will  discharge  the  surety,34  on  the  ground  that 

"Clark  v.  Osborn,  41  Ohio  St.  28;  Hightower  v.  Ogletree,  114  Ala.  94; 
Barnes  v.  Sammons,  128  Ind.  596;  Imming  v.  Fiedler,  8  111.  App.  256; 
Langdon  v.  Markle,  48  Mo.  357;  Graham  v.  Eesle,  73  Iowa,  451;  Ro9s  v. 
Jones,  22  Wall.  576. 

"Rawson  v.  Beekman,  25  N.  Y.  552;  Denick  v.  Hubbard,  27  Hun,  347; 
McCollum  v.  Hinckley,  9  Vt.  143;  Wetzel  v.  Sponsler,  18  Pa.  St.  460; 
Thompson  v.  Watson,  10  Yerg.  362;  Fidler  v.  Hershy,  90  Pa.  St.  363. 

19  Fidler  v.  Hershy,  90  Pa.  St.  363;  Savage  v.  Carleton,  33  Ala.  443;  Bates 
v.  Bank,  7  Ark.  394;  Porter  v.  Bank,  54  Ohio  St.  155. 

MGoodwin  v.  Simonson,  74  N.  Y.  133;  Kaufman  v.  Wilson,  29  Ind.  504. 

*' Phillips  v.  Riley,  27  Mo.  386;  Rowe  v.  Buchtel,  13  Ind.  38;  Conklin  v. 
Conklin,  54  Ind.  289;  Hightower  v.  Ogletree,  114  Ala.  94. 

°  Cox  v.  Jeffries,  73  Mo.  App.  412. 

"Smith  v.  Freyler,  4  Mont.  489;  Hefferlin  v.  Kieger,  19  Mont.  125;  Pin- 
tard  v.  Davis,  21  N.  J.  L.  632. 

•*  Harris  v.  Brooks,  21  Pick.  195. 


§    148)  EIGHTS    AND    REMEDIES    OF    SUEETY.  107 

the  surety,  by  reason  thereof,  omits  to  pay  the  debt  and  fails  to 
secure  himself,  or  he  may  change  his  position.35  If  at  any  time 
the  creditor  makes  an  absolute  promise  to  look  to  the  principal 
alone  for  the  payment,  and  the  surety,  in  reliance  on  that  prom- 
ise, surrenders  securities  held  for  indemnity,  or  is  induced  to 
omit  to  procure  security,  or  otherwise  changes  his  position  with 
reference  to  the  principal,  he  is  thereby  discharged.36 

But  the  creditor's  mere  statement  to  the  surety  that  the 
debtor's  responsibility  was  sufficient  security  for  the  debt,  and 
that  the  surety  was  not  to  be  called  upon,  will  not  estop  the 
creditor  from  resorting  to  the  surety,  if  the  claim  was  not  re- 
nounced and  the  surety  was  not  misled  to  his  disadvantage.37 
Because  such  declarations  are  made  to  be  received  as  expressions 
of  opinion.  They  neither  invite  confidence,  nor  is  confidence 
ever  reposed  in  them.  Standing  alone  they  will  not  discharge 
the  surety.38 

But  when  the  surety  is  released  by  such  express  promise,  the 
principal  still  remains  liable  for  the  whole  debt.39  The  liabil- 
ity of  the  principal  is  not  changed  by  release  of  the  surety. 
Thus,  a  surety  on  a  promissory  note  may  buy  his  discharge  and 
leave  in  full  force  the  original  debt  against  the  principal.40 

§  148.  Ceeditoe  Informing  the  Surety  That  the  Debt 
is  Paid. — When  the  creditor  gives  notice  to  the  surety  that  the 
principal  has  paid  the  debt,  and  such  surety  in  consequence 
changes  his  situation,  as  by  surrendering  securities  or  forbearing 
to  obtain  security  when  he  might,  or  otherwise  has  sustained  loss, 
he  is  discharged,  though  the  debt  was  not  paid,  and  such  notice 
was  by  mistake  and  without  fraudulent  design.     It  is  a  mistake 

55  West  v.  Brison,  99  Mo.  694;  Thornburg  v.  Madren,  33  Iowa.  380;  Wolf 
v.  Madden,  82  Iowa,  114. 

88  Bank  v.  Haskell,  51  N.  H.  116;  Whitaker  v.  Kirby,  54  Ga.  277. 

"Mich.  State  Ins.  Co.  v.  Soule,  51  Mich.  312;  Adams  v.  Gregg,  2 
Starkie,  53. 

88Brubaker  v.  Okeson,  36  Pa.  St.  519;  Driskell  v.  Mateer,  31  Mo.  235; 
Barney  v.  Clark,  46  N.  H.  514. 

M  Mortland  v.  Hines,  8  Pa.  St.  265. 

"Mcllhenney  v.  Blum,  68  Tex.  197. 


108  SURETYSHIP    AND    GUARANTY.  (Ch.  6 

made  at  the  peril  of  the  creditor,41  and  works  on,  the  principle  of 
estoppel. 

§  149.  Surety  May  Compel  Creditor  to  Resort  to  Se- 
curities in  the  Creditor's  Hands. — At  law  a  surety  will  be 
compelled  to  pay  the  debt,  and  after  that  look  to  the  collaterals 
of  his  principal  for  indemnity;  but  in  equity,  if  there  be  cir- 
cumstances from  which  it  appears  directly  or  by  reasonable 
inference  that  substantial  injury  or  prejudice  will  not  result  to 
the  creditor  by  the  enforcement,  in  the  first  instance,  of  the 
surety's  right,  and  have  the  debt  paid  from  the  principal's  prop- 
erty, the  surety  may  in  case  of  hardship  compel  the  creditor  to 
resort  to  the  securities  in  the  creditor's  hands  or  under  his  con- 
trol, the  property  of  the  principal,  in  satisfaction  of  the  debt 
before  coming  upon  him,42  or  compel  the  creditor  to  make  the 
debt  from  the  principal  who  is  financially  able  to  pay.43 

§  150.  Right  of  Surety  to  Defend  Action  Brought 
Against  His  Principal. — Sureties  are  allowed,  when  it  is 
necessary  for  their  own  protection,  to  defend  an  action  brought 
against  their  principal.  So  if  a  judgment  against  the  principal 
is  irregularly  obtained,  the  sureties  will  be  heard,  if  they  apply 
in  time,  on  motion  to  set  it  aside,  and  let  in  to  defend  the  original 
action.44  So  a  guarantor  or  surety  may  go  into  court  after  suit 
is  begun  against  the  principal  and  demand  reasonable  protection. 
And  if  the  creditor  destroys  their  claim  against  the  principal 
witL  a  view  of  falling  back  upon  them,  they  will  be  discharged.45 

§  151.  Subrogation  of  Creditor  to  Surety's  Securities. 
— When  the  debtor  has  given  security  to  his  surety  for  the 

"Baker  v.  Briggs,  8  Pick.  122;  Dewey  v.  Field,  4  Met. "381;  Carpenter  v. 
King,  9  Met.  511;  Wliitaker  v.  Kirby,  54  Ga.  277;  Brooking  v.  Bank,  83 
Kv.  431;  Waters  v.  Creagh,  4  Stew.  &  P.    (Ala.)    410. 

'''Hurley  v.  Furey,  54  N.  J.  Eq.  177;  Phila.  etc.  R.  R.  Co.  v.  Little,  41 
N.  .f.  Eq.  519. 

**  Dobie  v.  Casualty  Co.,  95  Wis.  540;  Beaver  v.  Beaver,  23  Pa.  St.  167. 

«*Je*rett  v.  Wbitman,  35  Barb.  208. 

u     tnrk  v.  Fuller,  42  Pa.  St.  320. 


§    151)  RIGHTS    AND    REMEDIES    OF    SURETY.  109 

indemnity  of  the  latter  only,  the  creditor  is  entitled  to  the  benefit 
of  the  same  by  proceedings  commenced  in  equity  after  the  debt 
is  due,  before  the  surety  has,  in  good  faith,  surrendered  or  dis- 
charged such  security.46  The  right  of  the  creditor  is  derived 
through,  and  not  independent  of,  the  surety,  and  the  creditor 
seeking  to  enforce  his  claim  against  the  surety  is,  in  equity,  en- 
titled to  subject  to  the  payment  of  his  debt  the  security  then  sub- 
sisting for  the  personal  indemnity  of  the  surety  to  the  same 
extent  that  the  surety  would  have,  had  he  discharged  the  debt. 
There  is  no  element  of  trust  in  such  security  in  favor  of  the  cred- 
itor until  he  has  taken  proper  steps  to  subject  it  to  the  payment 
of  his  claim.  And  until  the  creditor  has  taken  such  steps  the 
surety  has  a  right  to  release  such  security.47  Whether  a  creditor 
can  avail  himself  of  the  security  given  to  the  surety  by  the  debtor, 
depends  upon  the  purpose  for  which  it  is  given.  If  the  security 
be  purely  personal  to  indemnify  the  surety,  the  creditor  can- 
not have  the  benefit  of  such  surety  until  the  surety  is  actually 
damnified,  or,  at  least,  has  become  absolutely  liable  for  the  debt, 
for  the  creditor  must  claim  through  the  surety  by  subrogation, 
and  until  then  the  surety  has  no  remedy  upon  the  security.48 
If  the  security  is  given  for  the  better  security  of  the  debt  itself, 
as  for  its  payment  by  the  principal  debtor,  or  to  provide  the 
surety  with  means  to  pay  the  debt  in  case  of  default,  then, 
although  the  purpose  is  to  indemnify  the  surety  to  the  same 
extent,  a  trust  attaches  to  the  security  for  the  benefit  of  the 
creditor,  to  which  the  court  will  give  effect.49  Thus,  where  a 
mortgage  is  given  by  a  debtor  to  his  surety  for  a  better  security  of 

"Wright  v.  Morley,  11  Ves.  22;  Phillips  v.  Thompson,  2  Johns.  Ch.  418; 
Rankin  v.  Wilson,  17  Iowa,  463;  Jones  v.  Bank,  29  Conn.  25;  South  Omaha 
Nat.  Bank  v.  Wright,  45  Neb.  23;  Haven  v.  Foley,  18  Mo.  136;  Eastman  v. 
Foster,  8  Met.  19;  Russell  v.  Clark,  7  Cranch,  69;  Meyers  v.  Campbell,  59 
N.  J.  L.  378. 

"  Poole  v.  Lowe,  24  Colo.  475. 

48  Ohio  Life  Ins.  Co.  v.  Reeder,  18  Ohio  St.  46;  Chambers  v.  Prewitt, 
172  111.  615. 

"Moses  v.  Murgatroyd,  1  Johns.  Ch.  119;  Pavis  v.  Hulett,  26  Vt.  308; 
Homes  v.  Bank,  7  Conn.  484;  Eastman  v.  Foster,  8  Met.  19;  Aldrich  v. 
Blake,  134  Mass.  584;  Plant  v.  Storey,  136  Ind.  46;  Chambers  v.  Prewitt, 
172  111.  615. 


110  SURETYSHIP  AND  GUARANTY.  (Ch.  6 

his  debt,  or  to  provide  the  surety  with  means  to  pay  it,  in  case 
of  the  debtor's  default,  then,  although  the  purpose  is  to  indem- 
nify the  surety,  a  trust  attaches  to  the  mortgage  for  the  benefit 
of  the  creditor  which  the  courts  will  enforce.50 

In  some  States  it  is  held  in  order  to  make  such  security  avail- 
able to  the  creditor  in  any  case,  it  must  be  conditioned  for  the 
payment  of  the  debt,  to  be  enforced  on  default  in  its  payment.51 

When  the  security  is  given  by  a  stranger  to  indemnify  the 
surety,  and  not  for  the  payment  of  the  debt,  a  trust  does  not 
attach  to  it  for  the  creditor,  and  he  cannot  be  subrogated  to  the 
rights  of  the  surety  ;52  nor  is  the  rule  changed  because  the  secur- 
ity was  given  by  the  wife  of  the  principal,  for  she  is  a  stranger 
to  the  debt53 

If  the  creditor  is  secured  also  by  a  mortgage  on  the  surety's 
property,  the  other  creditors  of  the  surety  cannot  compel  the 
secured  creditor  first  to  exhaust  the  remedies  against  the  prin- 
cipal, before  resorting  to  the  mortgaged  premises  of  the  surety.54 

§  152.  Subrogation  of  Surety  to  Creditor's  Eights. — 
The  surety  may  be  subrogated  to  the  rights  of  the  creditor  under 
certain  circumstances.  If  the  surety  has  paid  the  debt  of  the 
principal,  he  may  be  subrogated  to  all  the  securities,  liens,  equi- 
ties, rights,  remedies  and  priorities  held  by  the  creditor  against 
the  principal,  and  he  is  entitled  to  enforce  them  against  the 
latter  in  a  court  of  equity,  or  of  equitable  jurisdiction.55     But 

"Chambers  v.  Prewitt.  172  111.  615. 

"  Poole  v.  Doster.  59  Mi--.  258  ;  Clay  v.  Freeman.  74  Miss.  816. 
"Taylor  v.  Bank,  S7  Ky.  39$ :  Leggett  v.  McClelland,  39  Ohio  St.  b24; 
Hampton  v.  Phipps.  10S  U.  S.  21    I. 

"  Taylor  v.  Bank.  $7  Ky.  39$  :  Leggett  v.  McClelland.  39  Ohio  St.  624. 
"Webber  v.  Webber.  109  Mich.   147. 

a  Rorer  v.  Ferguson.  96  Va.  411:  Mevers  v.  Miller     W.  Ya.i.  31  S.  E.  Rep. 

Sternbach  v.  Criedman.  34  App.  D.  534:  Whitbeck  v.  Ramsey.  74  I"1. 

App.  524:  Keokuk  v.  Love.  31  Iowa.  119:  Lochenmcyer  v.  Fogarty,  112  111. 

•  it  v.  Watts,  138  Mo.  502;  SI    rts  v.  George,  150  Mo.  1 ;  Gill 
Adams,  99  Iowa.  519:  Bartholomew  v.  Bank.  57  Kan.  594:  Wilson  v.  Bu    ey, 
thgate,   Ifl  Gray,  142:   Pur>heimer  v.  Buehe--. 
Dirk  v.  Moon,  26  Minn.  309  :  Wilson  v.  Phillips,  27  Tex.  5j,L_W 
ham  v.  Trust  <  O.      K  3.  W.  R<p.  7m; :    Frank  v.  Taylor.  130  Ind.  145. 


§  153,  154)     rights  and  remedies  of  surety.  Ill 

the  surety  cannot  ordinarily  claim  the  right  to  subrogation  until 
he  has  paid  the  whole  debt.60  And  this  right  of  subrogation 
arises  out  of  the  contract  of  suretyship,  and  is  consummated 
when  the  surety  pays  the  entire  debt.57 

The  surety  is  entitled  to  all  the  securities  if  necessary  to  pay 
the  debt,  and  any  person  with  notice  who  takes  such  securities 
is  bound  in  equity  to  hold  them  for  the  indemnity  of  the  surety, 
and  is  subject  to  all  equities  which  the  surety  could  originally 
enforce;58  but,  of  course,  the  surety  must  first  pay  the  debt,  and 
then  he  can  enforce  the  securities  hold  by  the  creditor  ;59  and  the 
surety  has  a  right  to  exact  of  the  creditor  proper  care  and  dili- 
gence in  the  management  and  collection  of  such  collaterals,  and 
any  waste  or  misapplication  of  them  will  operate  as  a  release  of 
the  surety  to  the  amount  of  loss  actually  sustained.60 

§  153.  What  Securities  the  Surety  is  Entitled  to 
Claim. — The  general  rule  is  that,  in  equity,  a  surety  is  entitled 
to  the  benefit  of  securities  which  the  creditor  holds  against  the 
principal,  pertaining  to  the  identical  debt.61  Thus,  where  a 
party  is  a  surety  for  a  partnership  and  for  one  of  the  partners 
individually,  he  has  no  right  to  apply  the  funds  or  securities 
received  for  the  partnership  to  the  payment  of  the  debts  of  the 
individual.62  The  debt  and  the  parties  must  be  identical,  and 
the  securities  be  those  pledged  for  the  debt  by  the  principal 
debtor;  then  on  payment  of  the  debt,  the  surety  can  be  subro- 
gated to  the  rights  of  the  creditor.63 

§  154.  When  Surety  Can  Take  Securities. — The  surety 

M  Bartholomew  v.  Bank,  57  Kan.  594. 

"  Wayland  v.  Tucker,  4  Gratt.  268. 

"  Atwood  v.  Vincent,  17  Conn.  575;  Drew  v.  Lockett,  32  Beav.  499; 
Stevens  v.  Cooper,  1  Johns.  Ch.  430;  Lichenthaler  v.  Thompson,  13  Serg. 
&  R.  157. 

59  Brick  v.  Banking  Co.,  37  N.  J.  L.  307. 

80  Rogers  v.  Trustees,  46  111.  428. 

61Copis  v.  Middleton.  1  Turn.  &  Russ.  224;  Hodgson  v.  Shaw,  3  Myl.  & 
K.  183. 

"•Downing  v.  Linville,  3  Bush,  472;  Stafford  v.  Bank,  132  Mass.  315. 

"  Hodgson  v.  Shaw,  3  Myl.  &  K.  183. 


112  SURETYSHIP  AND  GUARANTY.  (Cll.  6 

is  a  creditor  from  the  time  he  becomes  surety ;  and  when  he  pays 
the  debt  a  cause  of  action  for  reimbursement  arises  for  substi- 
tution to  the  securities  held  by  the  principal  creditor.  His  right 
becomes  immediately  consummate  to  have  the  securities  applied 
to  his  payment.64  Thus,  where  a  surety  pays  a  note  due  secured 
by  a  chattel  mortgage,  he  then  has  a  right  to  subrogation  to  the 
creditor's  rights  and  take  possession  of  the  property  for  his 
security,  in  the  same  manner  as  the  creditor  would  have  if  the 
note  had  not  been  paid.65  And  so,  if  he  pays  a  note  secured  by 
mortgage  upon  land,  he  is  in  equity  subrogated  to  the  mort- 
gage security  held  by  the  mortgagee,66  and  if  the  mortgagee 
releases  the  mortgage  it  does  not  divest  his  rights  except  as  to 
third  parties  without  notice  and  for  a  valuable  consideration.67 
When  security  is  given,  it  may  be  held  until  the  whole  debt  is 
paid  if  there  is  nothing  in  the  contract  to  the  contrary.68 

§  155.  Stranger  Paying  Debt. — The  right  to  subrogation 
applies  only  to  sureties  or  those  who  have  to  pay  the  debt  to  pro- 
tect their  own  interests.  Therefore,  a  mere  stranger,  or  volun- 
teer, cannot  pay  the  debt  for  which  another  is  bound,  and  be 
subrogated  to  the  creditor's  rights  in  respect  to  the  security  given 
by  the  debtor.69  However,  if  the  person  so  paying  is  compelled 
to  pay  for  the  protection  of  his  own  interest,  then  he  may  be 
subrogated  to  the  rights  of  the  creditor.70 

§  156.  When  Surety  Will  Not  Be  Subrogated. — The 
right  of  subrogation  is  purely  an  equitable  one,  and  its  applica- 
tion must  depend  upon  circumstances.  And  whether  its  appli- 
cation shall  be  so  great  as  to  include  all  the  rights  of  the  creditor 
must  often  depend  on  whether  it  is  necessary  to  the  protection 

"Longbridge  v.  Bowland,  52  Miss.  546. 

"Myers  v.  Yaple,  6  Mich.  339;  Torp  v.  Gulseth,  37  Minn.  135. 
"City  Nat.  Bank  v.  Dudgeon,  65  111.  10;  Beaver  v.  Slanker,  94  111.  175; 
Woods  v.  Bank,  83  Pa.  St.  57 ;  Chrisman  v.  Harman,  29  Gratt.  494. 
"City  Nat.  Bank  v.  Dudgeon,  65  111.  10. 
••  Sleingrehe  v.  Beveling  Co.,  83  111.  App.  587. 

■  Bartholomew  v.  Bank,  57  Kan.  594;  Matloy  v.  Harris,  1  Lea.  677. 
n  Hough  v.  InB.  Co.,  57  111.  318;  Young  v.  Morgan,  89  111.  199. 


§    157)  RIGHTS    AND    EEMEDrES    OF    SURETY.  113 

of  the  surety  to  apply  it.71  Because  equity  will  not  do  that 
which  will  be  of  no  benefit  to  the  party  asking  it  and  only  a  hard- 
ship upon  the  party  coerced.72  And  it  is  never  applied  where 
it  will  operate  as  an  injustice  to  the  creditor.73 

§  157.  Surety  Must  First  Pay  the  Debt. — Ordinarily  the 
creditor  is  entitled  to  full  satisfaction  of  the  debt  before  the 
right  of  subrogation  may  be  invoked  by  the  surety ;  so  the  surety 
may  not  interfere  with  any  of  the  creditor's  rights  and  securities 
so  long  as  any  part  of  the  debt  remains  unpaid.74 

The  application  of  the  doctrine  of  subrogation  requires  that 
the  surety  must  have  paid  the  debt  to  the  creditor,  for  the  pay- 
ment of  which  the  principal  was,  in  equity,  primarily  liable, 
and  that  in  paying  the  debt  the  person  so  paying  acted  under 
compulsion  of  saving  himself  from  loss,  and  not  as  a  mere  volun- 
teer.75 Still,  after  the  debt  has  become  due,  the  surety  may  go 
into  equity,  without  first  making  payment,  and  compel  the  prin- 
cipal to  pay  it,  if  he  is  financially  able.76 

In  some  cases,  in  order  to  avoid  circuity  of  action  or  multi- 
plicity of  suits,  equity  will  make  subrogation  of  the  surety  before 
judgment  is  rendered  against  him  or  payment  made.  Thus, 
equity  will  substitute  a  surety  on  a  guardian's  bond  to  the  rights 
of  the  wards,  to  subject  their  homestead  to  the  payment  of  a  debt 
due  by  the  guardian  to  the  wards,  before  requiring  the  surety  to 
make  good  the  guardian's  default,  where  the  wards  are  entitled 
to  the  homestead.77     And  so  a  surety  may  set  aside  a  fraudulent 

71  In  re  Hewitt,  25  N.  J.  Eq.  210. 

"Joliet,  etc.,  R.  R.  Co.  v.  Healy,  94  111.  41G. 

73  Bartholomew  v.  Bank,  57  Kan.  594. 

"Bartholomew  v.  Bank,  57  Kan.  594;  Willingham  v.  Trust  Co.  (Ky.), 
56  S.  W.  Rep.  706 ;  Vert  v.  Voss,  74  Ind.  566 ;  Opp  v.  Ward,  125  Ind.  241 ; 
Brough's  Estate,  71  Pa.  St.  460;  Conwell  v.  McCowan,  53  111.  363. 

"Aetna  L.  Ins.  Co.  v.  Middleport,  124  U.  S.  534;  Hoover  v.  Epler,  52 
Pa.  St.  522;  In  re  Church,  16  R.  I.  231. 

78  Hale  v.  Wetmore,  4  Ohio  St.  600;  Keokuk  v.  Love,  31  Iowa,  199; 
Moore  v.  Topliff,  107  111.  241. 

"State  v.  Atkins,  53  Ark.  303;  Gilbert  v.  Neely,  35  Ark.  24;  Lusk  v. 
Hopper,  3  Bush,  179. 

8 


114  SURETYSHIP    AND    GUARANTY.  (Ch.    6 

conveyance,  executed  by  the  principal,  after  becoming  liable 
for  the  principal's  debt,  but  before  payment  of  it.78  And  when 
the  creditor  permits  the  surety  to  be  subrogated  to  his  rights 
before  the  debt  is  paid,  the  principal  debtor  or  other  creditors 
cannot  complain.79 

§  158. What  is  Payment. — A  tender  of  payment  of  the  debt 
by  the  surety  differs  in  no  way  from  tender  in  any  other  pay- 
ment, and  must,  therefore,  be  unconditional,  where  a  statute 
does  not  control.80  So  a  tender  of  payment  to  a  creditor  by  the 
surety  with  condition  that  the  security  must  be  assigned  to  him, 
is  not  sufficient  to  entitle  the  surety  to  subrogation.81  And  pay- 
ment is  fully  made  when  the  surety  pays  part  and  the  principal 
the  balance.  In  such  case  subrogation  will  accrue  pro  tanto  to 
the  extent  of  the  surety's  payment.82  And  the  same  would  be 
the  effect  if  two  or  more  sureties  contribute  in  equal  or  unequal 
amounts  to  the  complete  payment;  each  would  be  subrogated 
according  to  the  amount  contributed.83 

And  payment  by  one  who  stands  in  the  relation  of  surety, 
although  it  may  extinguish  the  remedy  or  discharge  the  security 
as  respects  the  creditor,  has  not  that  effect  as  between  the  prin- 
cipal and  the  surety.84 

§  159.  Debtor  and  Creditor. — In  equity  the  surety  is  re- 
garded as  creditor  of  the  principal  debtor,  and  in  case  of  insol- 
vency of  the  latter,  the  former  may  retain  any  securities  in  his 
hands  belonging  to  the  principal,  and  his  possession  will  be 
sufficient  notice  to  a  purchaser  of  the  securities.85     And  securi- 

78  Longbridge  v.  Bowland,  52  Miss.  546. 

"Matley  v.  Harris,  1  Lea,  577. 

80  Sanford  v.  Balkley,  30  Conn.  344 ;  Richardson  v.  Chemical  Laboratory, 
9  Met.  42. 

"Forest's  Oil  Co.'s  Appeal,  118  Pa.  St.  138. 

"Magee  v.  Leggett,  48  Miss.  139.  Compare  Allison  v.  Sutherlin,  50  Mo. 
274,  where  the  debt  was  only  partly  paid  by  the  surety  and  he  was  allowed 
to  be  subrogated  pro  tanto,  which  is  against  the  weight  of  authority. 

■  Hank  v.  Potaces,  10  Watts,  152. 
"fWber  v.  Sharp,  72  Ind.  553. 

■  Crafts  v.  Mott,  5  Barb.  305. 


§    160,    161)        EIGHTS    AND    REMEDIES    OF    SURETY.  115 

ties  taken  by  one  of  two  or  more  sureties  inures  to  the  benefit  of 
all.80  And  the  surety  before  he  suffers  loss  may  use  his  liability 
as  such,  as  an  equitable  counterclaim  or  set-off  against  a  debt  he 
owes  his  insolvent  principal,  and  this  as  well  against  the  assignee 
of  an  overdue  debt  as  against  the  assignee  himself.87 

§  160.  Fraudulent  Conveyances  of  Principal. — A  surety 
who  is  compelled  to  pay  the  principal's  debt,  has  the  right  to 
impeach  a  deed  as  fraudulent  which  was  given  by  the  principal 
during  the  suretyship.88  The  surety's  contingent  liability  be- 
fore he  pays  the  debt  is  as  fully  protected  against  a  voluntary 
conveyance  as  a  claim  which  is  certain  and  absolute  as  where  he 
has  paid  the  debt.  The  rights  of  the  surety  or  other  contingent 
promisor  are  regarded  for  many  purposes  as  commensurate  in 
point  of  time  with  the  date  of  the  suretyship,  and  not  when  the 
surety  actually  paid  the  security  debt  for  the  principal.  The 
claim  of  the  surety  is  considered  as  having  existed,  so  far  as  to 
constitute  him  a  creditor,  at  the  time  he  incurred  the  contingent 
liability.  His  subsequent  payment  of  the  debt  extends  back  by 
relation  to  that  date,  although  no  demand  or  right  of  action 
technically  accrues  until  a  subsequent  date.89 

50  whenever  payment  is  made  by  the  surety,  he  is  to  be  con- 
sidered as  a  creditor  of  his  principal  from  the  time  the  debt 
was  created  or  note  was  made  and  delivered.90  And  though  the 
surety  has  no  cause  of  action  at  law  until  he  has  paid  the  debt, 
he  is  entitled  to  protection  against  fraudulent  conveyances  exe- 
cuted by  the  principal  since  he  become  surety.91 

§  161.  As  to  Exemptions  of  Principal. — Parties  entering 
into  contracts  are  presumed  to  have  in  view  such  exemption  laws 
and  rights  as  are  in  force  at  the  date  of  the  contract ;  in  other 

"Elwood  v.  Beifendorf,  5  Barb.  308. 

87  Walker  v.  Bicks,  80  N.  Car.  263. 

M  Hatfield  v.  Merod,  82  111.  113. 

w  Seward  v.  Jackson,  8  Cow.  40G ;  Gannard  v.  Eslava,  20  Ala.  732. 

00  Sargent  v.  Salmond,  27  Me.  539. 

51  Bragg  v.  Patterson,  85  Ala.  233;  Chotean  v.  Jones,  11  111.  500:  Keel  v. 
Larkin,  72  Ala.  493 ;  Longbridge  v.  Bowland,  52  Miss.  546. 


116  SURETYSHIP    AND    OUAEANTY.  (Ch.    6 

words,  the  laws  in  force  enter  into  and  become  a  part  of  the  con- 
tract.92 As  against  a  surety  who  has  to  pay  the  debt  of  the 
principal,  the  right  of  the  principal  to  homestead  and  other  ex- 
emptions, as  to  their  full  extent,  are  to  be  determined  by  the  law 
which  was  in  force  when  the  contract  of  suretyship  was  made, 
and  not  by  the  law  in  force  when  the  debt  was  actually  paid.93 
But  if  a  new  liability  is  created  by  reason  of  a  change  of  parties 
or  otherwise,  and  it  is  taken  in  full  payment  and  discharge  of 
the  original  debt,  the  right  of  exemption  is  measured  by  the  law 
in  force  at  the  date  of  the  new  obligation.94 

§  162.  When  Surety  Owes  Principal. — As  already  stated, 
the  surety  becomes  a  creditor  of  the  principal  from  the  date  of 
his  suretyship.95  So  a  surety  has  an  equitable  interest  in  his 
own  debt  to  his  principal,  arising  from  the  implied  contract  of 
the  principal  to  see  him  indemnified ;  and  this  equity  will  pre- 
vail over  any  counter  equity  of  a  subsequent  date.  Thus,  where 
the  surety  has  paid  the  debt  of  his  principal  subsequent  to  an 
assignment,  the  assignee  cannot  collect  the  debt  owed  by  the 
surety  to  the  principal,  because  the  surety's  payment  related 
back  to  the  contract  of  suretyship,  and  therefore  took  precedence, 
which  can  be  set  off  against  the  surety  debt  paid.96 

If  the  surety  takes  property  from  his  principal  and  agrees 
that  it  shall  satisfy  his  liability  as  surety,  the  surety  is  b»und, 
and  cannot  collect  further  from  his  principal,  after  paying  the 
debt.97  On  the  other  hand,  when  it  appears  to  the  court  that 
the  surety  has  paid  and  discharged  his  liability,  and  the  amount 
so  paid  by  him  is  equal  to  or  greater  than  the  judgment  against 
him,  the  court,  will  offset  the  amount  so  paid  by  the  surety 
against  the  judgment.98 

"Gunn  v.  Barry,  15  Wall.  610. 
MKeel  v.  Larkin,  76  Ala.  403. 
wKeel  v.  Larkin.  76  Ala.  403. 
"Beach  v.  Doyntnn.  2fi  Vt.  725. 
■*  Barney  v.  Grover,  28  Vt.  391. 
"Lewis  v.  Lewie,  02  111.  237. 
"Mattingly  v.  Sutton,  19  W.  Va.  19. 


§    163)  EIGHTS    AND    REMEDIES    OF    SURETY.  117 

§  163.  Payment  of  a  Specialty  or  Judgment. — The  pay- 
ment of  a  bond  or  other  specialty,  or  judgment,  by  a  surety  is 
not  generally  extinguished,  but  is  preserved  by  a  court  of  equity, 
but  not  of  law,  for  the  surety's  benefit."  This,  however,  is  a 
question  often  controlled  by  statute. 

In  Illinois  the  surety  may  keep  the  judgment  alive  which  he 
has  paid  for  his  benefit  by  procuring  it  to  be  formally  assigned 
to  a  third  person,  or  he  may  treat  the  judgment  as  satisfied  and 
resort  to  his  action  against  the  principal.  xYnd  if  the  judgment 
be  assigned,  the  surety  may  still  treat  it  as  discharged  and  resort 
to  his  action  against  the  principal.100 

In  Iowa  the  surety  is  entitled  to  an  assignment  of  the  judg- 
ment to  himself,  or  to  another  for  his  benefit,  and  equity  will 
regard  the  lien  as  still  subsisting,  and  will  aid  the  surety  in  its 
enforcement.101  In  Minnesota  he  may  take  an  assignment  of 
the  judgment  and  enforce  the  same  against  the  principal,102  and 
this  is  the  law  of  Missouri,103  and  in  New  York.104  In  Ohio  the 
surety  may  be  substituted  to  the  rights  of  the  creditor  against 
the  principal.105  Equitable  rules  will  keep  the  judgment  alive 
for  the  benefit  of  the  surety.106  It  is  the  general  rule  that  the 
payment  of  a  judgment  rendered  against  the  surety  and  princi- 
pal, or  against  the  insolvent  principal  alone,  by  the  surety,  will 
subrogate  the  surety  to  the  benefits  of  the  judgment,  which  he 
may  enforce  against  the  principal.107     Still  there  are  several 

M  Knight  v.  Morrison,  79  Ga.  55. 

100Katz  v.  Maessinger,  110  111.  372.  See  Kurd's  111.  Stat.  (1895)  eh.  98, 
see.  7c. 

101  Bones  v.  Aiken,  35  Iowa,  534. 
102Kimmel  v.  Lowe,  28  Minn.  265. 

103  Burne  v.  Schneeko.  100  Mo.  250. 

104  Eno  v.  Crooke,  10  N.  Y.  GO. 

105  Peters  v.  McWilliams,  6  Ohio  St.  155. 
108  Brown  v.  Beach,  96  Pa.  St.  482. 

107  Newton  v.  Field,  16  Ark.  216;  Dodd  v.  Wilson,  4  Del.  Ch.  399;  Gerber 
v.  Sharp,  72  Ind.  553;  Harris  v.  Frank,  29  Kan.  200;  Schoolfield  v.  Rudd, 
9  B.  Mon.  291;  Connely  v.  Bong,  16  La.  Ann.  108;  Crisfield  v.  State.  55 
Md.  192;  Smith  v.  Rumsey,  33  Mich.  183:  Sweeney  v.  Lustfield,  116  Mich. 
696;  Dinkins  v.  Bailey,  23  Miss.  665;  Eaton  v.  Lambert,  1  Neb.  339;  Low 
v.  Blodgett.  21  N.  H.  121;  Durand  v.  Truesdell,  44  N.  J.  L.  597:  Fanner  v. 
Douglass,  4  Jones  Eq.    (N.  Car.)   263;  Garvin  v.  Garvin,  27  S.  Car.  472; 


118  SURETYSHIP  AND  GUARANTY.  (Ch.  6 

courts  that  hold  that  by  payment  of  the  judgment  by  the  surety 
against  himself  or  against  him  and  his  principal,  he  thereby  ex- 
tinguishes the  judgment  and  cannot  have  it  reviewed,  even  in 
equity.108 

§  164.  Extent  of  Subrogation. — The  surety  is  not  entitled 
to  recover  from  his  principal  a  greater  amount  than  he  has  paid 
for  him,  but  he  is  entitled  to  interest  on  that  amount  from  the 
date  of  payment,  and  necessary  costs.  So  if  the  surety  pays 
the  debt  in  depreciated  currency,  he  can  demand  from  his 
principal  only  the  value  of  the  currency  or  other  medium  at  the 
time  of  payment,  and  the  criterion  of  value  is  the  market 
value.109  !Nbr  will  the  surety  be  allowed  to  speculate  in  the 
obligations  of  his  principal.110  And  so  where  a  surety  on  a 
bond  has  settled  the  same,  he  cannot  claim  from  the  principal 
more  than  he  has  paid  in  satisfaction.111 

If  the  sureties  pay  the  creditor  in  his  own  obligations  instead 
of  money,  either  before  or  after  judgment,  this  payment  entitles 
them  to  the  same  indemnity  as  if  paid  in  money  after  judgment. 
So  where  the  creditor  sues  the  sureties  and  they  are  allowed  a 
set-off  to  part  of  his  demand,  their  right  of  subrogation  is  not 
limited  to  the  amount  of  the  judgment  against  them  for  the 
balance,  but  extends  to  the  whole  amount  of  the  creditor's 
claim.112  Because  the  equities  of  the  sureties  to  subrogation 
extend  not  only  to  the  rights  of  the  creditor  against  the  prin- 
cipal, but  to  all  rights  of  the  creditor  respecting  the  debt  which 
the  sureties  pay.113 

McNairy  v.  Eastland,  10  Yerg.  310;  Tutt  v.  Thornton,  57  Tex.  35;  Coffman 
v.  Hopkins,  75  Va.  645;  German  Sav.  Bank  v.  Fritz,  68  Wis.  390;  Bragg  v. 
Patterson,  85  Ala.  233. 

108  Whittier  v.  Hemingway,  22  Me.  238;  Pray  v.  Maine,  7  Cush.  253;  Fre- 
vert  v.  Henry,  14  Nev.  181;  Moore  v.  Campbell,  36  Vt.  361. 

109  Butler  v.  Butler,  8  W.  Va.  674;  Hall  v.  Cresswell,  12  Gill  &  J.  36; 
Kenedrick  v.  Forney,  22  Gratt.  748. 

»°  Sehoonover  v.  Allen,  40  Ark.  132. 

,n  Martindale  v.  Broek,  41  Mr.  571  ;  Black  v.  Bank,  149  Mass.  250. 

,u  Keokuk  v.  Love,  31  Iowa,  119. 

"•  Braugh  v.  Griffith,  16  lowa,  26. 


§    165,  166)        RIGHTS    AND   REMEDIES    OF    SURETY.  119 

§  165.  Surety  of  a  Surety. — A  surety  of  a  surety  who  has 
paid  the  obligation,  has  tho  same  equity  of  subrogation  as  the 
surety  to  whom  he  was  bound.114  So  if  a  creditor  exacts  the 
whole  of  his  demand  from  one  of  the  sureties,  that  surety  is 
entitled  to  be  substituted  in  his  place  and  to  a  cession  of  his 
rights  and  securities.115  But  a  surety  of  a  surety  being  com- 
pelled to  pay  the  creditor  is  not  entitled  to  be  subrogated  in  the 
place  of  such  creditor  for  the  purpose  of  enforcing  the  payment 
against  the  principal  debtor,  if  such  debtor  has  paid  his  immedi- 
ate surety.116 

It  is  entirely  competent  for  one  person  to  become  surety  for 
other  sureties,  or  to  limit  the  extent  of  his  liability  with  respect 
to  the  other  sureties.  The  true  test  of  liability  in  these  cases  is 
the  intent  of  the  parties  as  indicated  by  their  mutual  agree- 
ment.117 And  a  surety  for  a  surety  is  not  bound  with  the  first ; 
that  is,  the  last  surety  is  not  bound  with  the  one  whose  name 
precedes  his  as  surety  of  the  principal,  and  he  becomes  liable 
only  after  the  first.118  The  last  surety  may  sign  as  surety  for 
those  preceding  him,  and  not  for  the  principal,  and  then  he  will 
be  held  liable  after  his  principal  fails.119  Thus,  where  he  signs 
a  note  as  security  for  one  who  is  himself  a  surety  for  the  princi- 
pal maker,  he  is  not  liable  in  a  suit  for  contribution  by  the 
one  for  whom  he  signed  as  security.120 

§  166.  Co-Sureties. — A  surety  who  pays  his  principal's  debt 
is  entitled  to  be  subrogated  to  all  the  rights  and  remedies  of  the 
creditor  against  his  co-surety  in  the  same  manner  as  against  the 

114  Rittenhouse  v.  Levering,  6  Watts  &  S.  190. 

118  Cheesebrough  v.  Millard,  1  Johns.  Ch.  409 ;  King  v.  Baldwin,  2  Johns. 
Ch.  554. 

118  New  York  State  Bank  v.  Fletcher,  5  Wend.  85. 

n7McNeilly  v.  Patchin,  23  Mo.  40;  McCollum  v.  Boughton,  132  Mo.  601. 

118  Harris  v.  Warner,  13  Wend.  400;  Sayles  v.  Sims,  73  N.  Y.  551;  Cray- 
thorne  v.  Swinburne,  14  Ves.  16;  Moffit  v.  Roche,  77  Ind.  48;  Sherman  v. 
Beach,  49  Vt.  198. 

"•  Singer  Mfg.  Co.  v.  Bennett,  28  W.  Va.  16 ;  Robertson  v.  Deatharge,  82 
111.  511;  McCollum  v.  Boughton,  132  Mo.  601. 

"°  Robertson  v.  Deatharge,  82  111.  511. 


120  STJEETYSHIP    AND    GUAEANTY.  (Ch.  0 

principal.121  So  where  there  are  two  sureties  on  bills  of  ex- 
change and  specialties,  and  one  of  them  has  paid  more  than  his 
proportion,  and  contribution  is  sought,  the  surety  who  has  over- 
paid will  be  subrogated  to  the  right  of  his  creditor  to  that  extent, 
because  the  principle  of  substitution  applies  equally  to  cases 
arising  between  co-sureties  and  those  between  surety  and  prin- 
cipal.122 But  co-sureties  will  be  entitled  to  the  benefits  of  any 
compromise  effected  by  the  paying  surety,  or  any  discounts  that 
have  been  obtained  by  paying  the  debt  in  depreciated  currency, 
notes  of  banks  or  any  other  reduction.123  And  so,  on  the  other 
hand,  a  co-surety  must  contribute  for  costs  of  a  suit  beneficial 
to  his  interest.124 

§  167.  Joint  Debtoes. — A  joint  debtor  who  has  been  com- 
pelled to  pay  more  than  his  share  of  the  indebtedness,  becomes 
a  surety  for  his  co-debtor,  and  will  be  subrogated  to  the  rights  of 
the  creditor  against  his  co-debtor  for  his  ratable  share  of  the 
debt.125  But  if  the  debt  is  compromised  or  paid  in  depreciated 
currency,  the  actual  amount  paid  will  be  the  criterion  of  settle- 
ment and  subrogation.  If  a  co-promisor  pays  a  debt  barred  by 
the  statute  of  limitations  against  the  consent  of  his  co-debtor, 
he  has  no  right  of  subrogation  as  against  the  non-consenting 
promisor.126 

§  168.  Successive  Sueeties  in  Judicial  Peoceedings. — 
Where  one  is  surety  for  a  debtor  and  the  creditor  brings  suit 
against  the  principal,  who  appeals  the  case  after  judgment  is 
rendered  against  him,  and  gives  an  appeal  bond  with  surety, 
then  the  original  surety  for  the  principal  debtor,  upon  paying 

mHess's  Estate,  69  Pa.  St.  272. 

112  Lidderdole  v.  Robinson,  2  Brock.  160;  12  Wheat.  594;  Croft  v.  Moore, 
9  Watts,  451. 

123  Edwards  v.  Sheahaw,  47  Tex.  443 ;  Kelly  v.  Page,  7  Gray,  213;  Jones 
v.  Bradford.  25   Tnd.  305.     See  sec.   104  et  scq. 

m  Connolly  v.  Dolan    (R.  I.),  46  At.  Rep.  36. 

,M  Afkorman's  Appeal,  106  Pa.  St.  1  ;  Schoenewald  v.  Dieden,  8  111.  App. 
389;  Hall  v.  Hall,  34  Ind.  314. 

«  Ellicott  v.  Nichols,  7  Gill    (Md.),  85;  Waughop  v.  Bartlett,  165  111.  124. 


§    169,  170)        EIGHTS    AND    REMEDIES    OF    SURETY.  121 

the  debt,  has  a  right  to  enforce  such  bond  for  his  own  indem- 
nity against  the  surety  on  the  appeal  bond;  that  is,  where  the 
judgment  has  been  appealed  by  the  principal  debtor  without  the 
consent  of  the  surety,  and  the  surety  has  afterwards  paid  the 
judgment,  he  has  an  equitable  right  to  be  subrogated  to  the 
benefit  of  the  appeal  bond.127 

In  such  case  the  equity  of  the  first  surety  is  superior,  and  he  is 
entitled  to  be  subrogated  to  the  rights  of  the  creditor  against  the 
second  surety.128  But  if  the  subsequent  surety  becomes  bound 
for  a  purpose  in  which  both  the  principal  and  the  prior  surety 
have  an  interest,  and  the  assent  of  the  prior  surety  is  expressly 
given,  or  may  be  inferred,  the  rule  is  otherwise,  and  the  last 
surety  has  a  right  to  look  for  his  indemnity  not  only  to  his  prin- 
cipal, but  to  such  fixed  securities  as  had  been  given  to  the  cred- 
itor when  his  engagement  was  entered  into,  and  on  the  faith  of 
which  he  may  have  incurred  his  obligation.129 

In  some  jurisdictions  neither  the  prior  nor  subsequent  surety 
is  entitled  to  subrogation  against  the  other.130 

§  169.  Guarantors. — A  guarantor  on  a  promissory  note, 
when  the  maker  fails  to  pay  it,  may  pay  it,  and  the  law  will 
imply  a  promise  on  the  part  of  the  maker  to  repay,  and  the 
guarantor  will  be  subrogated  to  the  rights  of  the  holder  to  whom 
he  makes  payment;131  and  the  guarantor  will  be  substituted  to 
the  rights  and  securities  of  the  holder  of  the  note.132 

§  170.  Surety's  Defense — In  Courts  of  Equity  or  of 
Law. — Under  the  common  law  it  is  held  that  a  surety  can  seek 

m  Parsons  v.  Briddock,  2  Vera.  608 ;  Friberg  v.  Donovan,  23  111.  App.  58. 

'"Hartwell  v.  Smith,  15  Ohio  St.  200;  Bradenburg  v.  Flynn,  12  B.  Mon. 
397 ;  Pott  v.  Nathans,  1  Watts  &  S.  155 ;  Dunlap  v.  Foster,  7  Ala.  734. 

"•Dillon  v.  Scofield,  11  Neb.  419;  Hartwell  v.  Smith,  15  Ohio  St.  200; 
Mouson  v.  Drakeley,  40  Conn.  552. 

"•-Holmes  v.  Day,  108  Mass.  563;  Morse  v.  Williams,  22  Me.  17;  Semmes 
v.  Naylor,  12  Gill  &  J.  (Md.)  358.     See  sees.  9,  209. 

'"Hamilton  v.  Johnson,  82  111.  39;  Voltz  v.  Bank,  158  111.  532. 

mRand  v.  Barrett,  66  Iowa,  731;  Washington  Bank  v.  Shurtleff,  4 
Met.  30. 


122  SURETYSHIP  AND  GUARANTY.  (Ch.  C 

relief  only  in  a  court  of  equity,  for  the  purpose  of  showing  that 
he  has  been  discharged,  or  for  other  relief.  But  the  doctrine  is 
now  that  whatever  will  discharge  a  surety  in  equity  can  be  inter- 
posed in  a  suit  at  law,  unless  there  be  some  complications  of 
interest  as  would  prevent  a  court  from  affording  adequate  relief. 
And  although  relief  may  be  had  in  both  courts,  a  court  of  equity 
having  jurisdiction  will  not  send  a  surety  to  a  court  of  law  to 
seek  his  defense.133 

So  where  the  makers  of  a  note  are  released  by  a  subsequent 
destruction  of  the  collateral  security,  they  may  make  their 
defense  available  in  an  action  at  law,  upon  the  note.134  And 
generally  whatever  defense  may  be  set  up  in  a  court  of  equity 
against  the  surety's  liability  may  be  averred  and  proved  in  a 
court  of  law.135 

The  decided  American  authority  is  in  favor  of  the  admissi- 
bility of  the  defense  at  law.  However,  some  courts  hold  that  a 
surety  must  go  into  equity  for  his  defense,136  and  many  English 
decisions  are  in  accord  with  this  doctrine.137 

§  171.  Remedies  of  Creditor. — The  creditor  may  sue  the 
principal  alone,  and  the  principal  cannot  complain,  because  it 
could  be  of  no  benefit  to  him  in  any  case  to  have  his  surety 
adjudged  jointly  liable  with  him  upon  the  cause  of  action,  as  the 
ultimate  liability  must  fall  upon  the  principal.138  Or  the  cred- 
tor  may  sue  both  in  one  action,139  or  the  surety  alone.  But  a 
judgment  against  the  surety  is  not  binding  on  the  principal 
where  he  was  not  a  uartv  to  the  suit.140     And  in  some  States 

"•Philpot  v.  Briant,  4  Bing.  717;  Mayhew  v.  Crickett,  2  Swan.  185;  Eyre 
v.  Everett,  2  Russ.  382. 

1M  Rogers  v.  Trustees,  46  111.  428. 

"•  Smith  v.  Clopton,  48  Miss.  66;  King  v.  Baldwin,  2  Johns.  Ch.  555; 
People  v.  Jansen,  7  Johns.  332;  Baker  v.  Briggs,  8  Pick.  122. 

"•Anthony  v.  Fritts,  45  N.  J.  L.  1;  Shute  v.  Taylor,  61  N.  J.  L.  256; 
Grier  v.  Flitcraft,  57  N.  J.  Eq.  556. 

"■  Strong  v.  Foster,  17  C.  B.  201 ;  Manley  v.  Baycut.  2  El.  &  B.  46;  Price 
v.  Edwards,  10  B.  &  C.  578;  Hollier  v.  Eyre,  9  CI.  &  F.  1. 

1U  Fourth  Nat.  Bank  v.  Mayer,  100  Ga.  87. 

'"Wheeler  v.  Rohrer,  21   Ind.  App.  477. 

140  Benjamin  v.  Ver  Nooy,  36  App.  Div.  581. 


§    172)  RIGHTS   AND   REMEDIES    OE    SURETY.  123 

if  a  surety  signs  as  a  principal,  he  cannot  set  up  as  a  defense  that 
he  is  a  surety,  in  an  action  at  law.  His  remedy  is  in  equity  to 
restrain  the  collection  of  the  note.141  But  this  is  contrary  to  the 
great  weight  of  authority.  Thus,  it  may  be  shown  by  parol  evi- 
dence in  a  court  of  law  that  one  of  the  makers  of  a  note  signed 
as  surety,  which  was  known  to  the  payee,  though  on  the  face  of 
the  note  he  is  a  joint  maker ;  and  he  is  not  obliged  to  go  into  a 
court  of  equity  to  set  up  his  equitable  defense.142  Such  evi- 
dence does  not  alter  or  vary  the  written  contract,  as  the  facts 
found  simply  operate  when  the  knowledge  of  it  is  brought  home 
to  the  creditor,  to  prevent  him  from  changing  the  contract  and 
making  a  different  one  with  the  principal  debtor  without  the 
consent  of  the  surety,  or  from  impairing  the  rights  of  the  latter 
by  releasing  any  security  or  omitting  to  enforce  the  contract 
when  requested.143 

The  contrary  or  equitable  doctrine  is  that  the  right  of  the 
surety  to  have  his  status  respected,  does  not  pertain  to  his  con- 
tract, as  an  implied  incident,  but  as  a  mere  equity,  which  it  is 
irregular  to  enforce  in  a  court  of  common  law,  so  long  as  it  is 
important  to  preserve  the  distinction  between  procedure  of  a 
legal  and  that  of  an  equitable  forum.144 

§  172.  Death  of  Principal. — When  the  principal  debtor 
in  an  obligation,  to  which  there  are  sureties,  dies,  the  creditor 
may  look  to  the  sureties  as  primarily  liable  to  perform  the  con- 
tract, and  need  not,  unless  so  ordered  by  statute,  present  the 
claim  to  the  administrator  of  the  deceased  principal  for  allow- 

141  Grier  v.  Flitcraft,  57  N.  J.  Eq.  556;  Anthony  v.  Fritts,  45  N.  J.  L.  1 ; 
Shute  v.  Taylor,  61  N.  J.  L.  256. 

142  Lime  Rock  Bank  v.  Mallett,  34  Me.  547;  Carpenter  v.  King,  9  Met. 
511 ;  Grafton  Bank  v.  Kart,  4  N.  H.  221 ;  Archer  v.  Douglass,  5  Denio,  307 ; 
Branch  Bank  v.  James,  9  Ala.  949;  Hubbard  v.  Gurney,  64  N.  Y.  459; 
Bank  v.  Jeffs,  15  Wash.  231;  Stillwell  v.  Aaron.  69  Mo.  539;  Ward  v.  Stout, 
32  111.  399;  Flynn  v.  Mudd,  27  111.  323;  Drescher  v.  Fulham,  11  Colo.  App. 
62;  Smith  v.  Shelden,  35  Mich.  42;  Piper  v.  Newcomer,  25  Iowa,  221; 
Stewart  v.  Parker,  55  Ga.  656 ;  Irvine  v.  Adams,  48  Wis.  468. 

143  Hubbard  v.  Gurney,  64  N.  Y.  457. 

144  Grier  v.  Flitcraft,  57  N.  J.  Eq.  556. 


124  SURETYSHIP  AND  GUARANTY.  (Ch.  6 

ance  and  payment.145  But  in  some  jurisdictions  statutory  pro- 
visions provide  that  where  the  estate  of  the  deceased  is  sufficient 
to  pay  the  claims,  the  failure  of  the  creditor  to  file  his  claim 
against  the  estate,  shall  operate  to  release  the  surety  on  the 
contract.146 

§  173.  Debt  Barred  Against  the  Principal. — Although 
the  debt  may  be  barred  by  limitations  as  against  the  principal, 
yet  if  judgment  may  be  rendered  against  the  surety,  which  is 
done  and  he  pays  it,  such  surety  may  recover  against  the  prin- 
cipal or  against  his  estate  in  case  of  his  death.  The  right  of 
action  in  favor  of  the  surety  arises  when  he  pays  the  debt,  and 
is  not  based  upon  the  original  contract  itself,  but  upon  the  im- 
plied contract  which  exists  by  law  between  the  principal  and 
surety  in  such  cases.147 

The  surety's  right  in  such  case  is  not  based  upon  subrogation 
to  the  claims  of  the  creditor,  but  on  the  implied  obligation  of  his 
principal  to  reimburse  him  when  he  pays  the  debt,  and  exists 
though  the  debt  to  the  payee,  when  discharged  by  the  surety,  is 
barred  as  to  the  principal  debtor.148  Thus,  where  the  creditor 
fails  to  present  his  claim  to  the  administrator  of  the  deceased 
debtor  within  the  time  provided  by  statute,  and  the  claim  be- 
comes barred,  the  creditor  may  then  bring  suit  against  the 
surety  on  the  secured  debt  and  recover  judgment,  and  after  pay- 
ment of  the  judgment  by  the  surety,  the  latter  may  then  recover 
from  the  decedent's  estate  the  amount  paid,  with  costs  and 
interest.149 

This  is  on  the  ground  that  the  obligation  of  the  principal 
to  indemnify  the  surety,  does  not  arise  out  of  his  original  con- 

118  Ray  v.  Brenner,  12  Kan.  105;  Willis  v.  Chowning,  OP  Tex.  617 ;  Breden- 
burgh  v.  Snyder,  6  Iowa,  39;  Boardwalf  v.'""Paige,  11  N.  H.  437;  People  v. 
White,  11  111.  341. 

)MWau<diop  v.  Bartlett,  165  111.  124. 

1,7  Fairea  v.  ('ockerell^Jft  Tex.  428;  Wood  v.  Leland,  1  Met.  387;  Reeves 
v.  Pullian,  7  Baxt.  119;  Peaslee  v.  Reed,  10  N.  H.  489;  Crosby  v.  Wyatt, 
2li  Me.  156;  Marshall  v.  Hudson,  9  Yerg.  57. 

""Willis  v.  Chowninp,  90  Tex.  617. 

"•"Marshall  v.  Hudson,  9  Yerg.  57'fiI>earson  v.  Goyle,  11  Ala.  280;  Will 

v  ^hfiwrfirifr-  !)"  'IVx  fi 


§    173)  BIGHTS    AND    REMEDIES    OF    SURETY.  125 

tract  with  the  creditor,  but  is  implied  by  the  law  from  his  rela- 
tion to  the  surety,  and  it  continues  until  the  liability  of  the 
surety  is  terminated.150  The  principal's  liability  arises  when 
the  surety  has  performed  the  contract.151 

There  are  decisions  which  hold  a  contrary  view,  that  when 
the  claim  is  barred  as  against  the  principal  debtor,  it  is  thereby 
barred  also  as  against  the  surety,152  but  they  are  against  the 
great  weight  of  authority. 

150  Hollinsbee  v.  Ritchey,  49  Ind.  261. 
161  Lamb  v.  Withrow,  31  Iowa,  164. 

152  Auchawpaugh  v.  Schmidtt,  70  Iowa,  642;   State  v.  Blake,  2  Ohio  St. 
147;  Dorsey  v.  Wyman,  6  Gill   (Md.),  59.     See  sec.  190. 


126  SURETYSHIP  AND  GUARANTY.  (Ch.  7. 

CHAPTER  VII. 

BIGHTS   AND    EE2JEDIES    OF    SURETY   AS    TO    PEIXCIPAL. 

§  174.  Liability  of  Principal  to  Surety*. — The  contract 
of  the  principal  "with  the  surety  to  indemnify  him  for  payment 
which  the  latter  may  make  to  the  creditor  in  consequence  of  the 
liability  assumed,  takes  effect  from  the  time  when  the  surety 
becomes  responsible  for  the  debt  of  the  principal.  It  is  then 
ihat  the  law  raises  the  implied  contract  or  promise  of  indemnity. 
Xo  new  contract  is  made  when  the  debt  is  paid  by  the  surety,  but 
the  payment  relates  back  to  the  time  when  the  contract  was  en- 
tered into  by  which  the  liability  to  pay  was  incurred.  The  pay- 
ment only  fixes  the  amount  of  damages  by  which  the  principal 
is  liable  under  his  original  agreement  to  indemnify  the  surety.1 
Thus,  the  liability  of  a  principal  in  a  promissory  note  to  his 
surety  is  incurred  when  the  note  is  executed  and  delivered,  and 
not  at  the  time  the  surety  is  compelled  to  pay  the  sama2  If  a 
stranger  pays  the  debt  and  the  surety  reimburses  him,  the  surety 
can  recover  the  amount  from  the  principal.3 

§  175.  Payment  Before  Due  by  Surety. — The  surety  may 
pay  the  debt  before  it  is  due,  if  he  thereby  causes  no  injury  to 
the  principal,  but  he  cannot  recover  from  the  principal  until 
the  debt  matures.4  The  surety  need  not  wait  until  the  creditor 
sues  him.  He  may  consult  his  own  safety  and  resort  to  any 
Are  calculated  to  assure  him  of  it,  which  does  not  involve 
iujury  to  the  principal,  but  he  cannot  compel  payment  by  the 

1  Pennington  v.  Seal,  49  Mi*s.  525:  Williams  v.  Bank,  11  Md.  242;  Rice  v. 
Southgate.  16  Gray,  142:  Miller  v.  Stout.  5  Del.  Ch.  262:  Martin  v.  Elkrbe. 
70  Ala.  335;  Choteau  v.  Jones,  11  111.  300:  Tibey  v.  Swenson.  32  Kan.  224; 
Wilson  v.  Crawford,  47  Iowa.  469;  Covey  v.  Neff.  63  Ind.  391;  Thomas  v. 
Liebke,  81  Mo.  675;  Konitzky  v.  Meyer.  40  N.  Y.  571 

1  Washburn  v.  P.Iundell,  75  Miss.  266. 

•Harper  v.   McVeigh,  82  Ya.  751. 

4  Rose  v.  Henefee,   [25  End.    '    ' 


§    170)  iilGJITi   AiND   REMEDIES    OF    SURETY.  127 

principal  until  the  maturity  of  the  debt.5  And  the  payment  of 
the  debt  before  maturity  is  not  necessarily  voluntary;  and  so 
when  a  co-surety  has  paid  the  debt  before  maturity,  he  can  com- 
pel contribution  from  the  other  co-sureties  when  the  debt  becomes 
due.6 

§  176.  Part  Payment  by  Surety. — In  some  cases  the  surety 
can  compromise  the  debt  and  pay  only  part  for  a  full  satis- 
faction ;  or  he  may  pay  part  and  the  principal  the  balance.  In 
such  cases  the  surety  can  compel  his  principal  to  reimburse  him 
for  his  outlay.7  And  if  the  surety  is  obliged  to  make  several 
payments,  he  may  bring  several  suits  for  the  amounts  paid.8 
Such  may  be  the  case  when  the  surety  is  compelled  to  pay  coupon 
notes  as  they  fall  due,  or  the  payee  has  the  option,  which  is 
seldom  the  case,  to  demand  a  partial  payment  of  the  debt  at 
different  times.  But  the  surety  has  no  right  to  pay  in  install- 
ments when  the  contract  does  not  so  stipulate,  and  then  bring 
several  suits  against  the  principal.  But  the  rule  is  different  in 
Louisiana,  and  in  that  State  the  surety  is  entitled  to  make  par- 
tial payments,  and  to  bring  a  suit  on  each  payment,  because, 
it  is  held,  the  obligation  of  the  principal  toward  the  surety  is 
not  indivisible.9  The  Louisiana  court  cites  Poivnal  v.  Fer- 
raud10  as  authority  for  that  doctrine.  But  that  case  does  not 
declare  any  such  doctrine.  It  holds  that  an  indorser,  as  a  surety, 
who  makes  a  part  payment  on  a  bill  or  note,  may  hold  his  prin- 
cipal for  the  amount  so  paid ;  that  is,  an  indorser  of  a  bill  being 
sued  by  the  holder,  who  pays  part  of  the  sum  mentioned  in  the 
bill,  may  recover  the  same  from  the  acceptor  in  an  action  for 
money  paid  for  his  use. 

That  a  surety  can  at  his  option  pay  the  debt  of  his  principal 

1  Armstrong  v.  Gilchrist,  2  Johns.  Cas.  429 ;  White  v.  Miller,  47  Ind.  385. 

"Craig  v.  Craig,  5   Rawle,   01. 

'Davies  v.  Humphreys,  6  Mees.  &  W.  152;  Pownal  v.  Ferraud,  6  Barn.  & 
Cr.  439;  Wilson  v.  Crawford,  47  Iowa,  469;  Williams  v.  Williams,  5  Ohio, 
444;  Hall  v.  Hall,  10  Humph.  (Tenn.)    352;  Wright  v.  Butler,  6  Wend.  284. 

•Bullock  v.  Campbell,  9  Gill   (Md.),  182. 

9  Newman  v.  Coza,  2  La.  Ann.  642 ;  Pickett  v.  Bates,  3  La.  Ann.  627. 

10  6  Barn.  &  Cr.  439. 


128  SURETYSHIP    AND    GUARANTY.  (Ch.  7 

in  partial  payments,  and  then  institute  a  suit  against  his  prin- 
cipal for  each  payment,  is  not  the  law,  for  he  has  no  right  to 
split  up  his  actions  for  the  collection  of  a  debt.11  If  circum- 
stances should  compel  him  to  make  partial  payments,  the  rule 
might  be  changed,  and  he  then  could  bring  his  several  actions 
against  his  principal.12 

In  case  of  joint  sureties,  when  each  furnishes  money  to  pay 
the  principal's  debt,  an  action  to  recover  from  the  principal 
must  be  separate  and  not  joint.  But  if  the  debt  is  paid  by 
an  agent  of  the  sureties  out  of  his  own  funds,  then  the  action  by 
the  sureties  must  be  joint.13 

§  177.  The  Surety  Must  Be  Under  a  Legal  Obligation 
to  Pay. — The  surety  must  be  under  a  legal  obligation  to  pay 
the  debt  in  order  to  hold  his  principal.  After  the  debt  of  the 
principal  is  due,  the  law  implies  that  the  principal  requests  such 
payment,  and  also  implies  a  promise  to  pay  the  surety.  If  the 
surety  is  under  no  legal  obligation  to  pay,  then  the  implied  re- 
quest of  the  principal  to  pay  the  debt  will  not  arise,  nor  the 
implied  promise  to  repay  the  surety,  and  if  the  surety  pays 
under  such  circumstances  he  cannot  recover  from  the  princi- 
pal.14 Thus,  where  the  surety  is  released  from  liability,  and  he 
then  pays  the  debt  of  the  principal,  he  cannot  hold  the  principal 
liable  to  him  for  the  payment.  Because  he  is  no  longer  a  surety 
and  is  not  entitled  to  any  of  the  rights  growing  out  of  such  rela- 
tion. He  occupies  no  better  attitude  than  any  other  person  pay- 
ing the  debt  of  another  without  request  or  authority,  implied  or 
express.15 

But  a  request  by  the  principal  to  pay,  and  a  request  to  enter 
into  a  contract  of  suretyship  may  be  implied.16     In  an  ordinary 

D  Jones  v.  Trimble,  3  Rawle,  388. 

"Bullock  v.  Campbell,  9  Gill   (Md.),  182. 

"Ross  v.  Allen,  67  111.  317;  Whitbeck  v.  Ramsey,  74  111.  App.  544; 
Gould  v.  Gould,  8  Cow.  168;  Appleton  v.  Bascom,  3  Met.  169. 

"Kimble  v.  Cummins,  3  Met.   (Ky.)    327. 

"Spillmnn  v.  Smith.  15  B.  M<>n.  134. 

1  Srudl  v.  Warner,  63  111.  176;  Rieketson  v.  Giles,  91  111.  154;  Hall  V. 
Smith,  5  How.   (U.  S.)   96. 


§    17 S)  BIGHTS    AND    REMEDIES    OF    SUEETY.  129 

case  where  the  principal  makes  default  in  the  payment  of  the 
debt  or  the  performance  of  the  contract,  the  surety  need  not  wait 
for  suit  to  be  brought,  but  may,  as  soon  as  his  liability  arises, 
pay  and  discharge  the  debt.  It  is  not  necessary  to  obtain  consent 
of  the  principal,  because  the  law  implies  a  request  to  the  surety 
so  to  act  in  behalf  of  his  principal.  And  money  thus  paid  is 
paid  for  the  use  of  the  principal,  and  the  surety  may  maintain 
an  action  against  his  principal  for  it.17  But  if  the  surety 
voluntarily  pays  a  note  for  which  his  principal  is  not  liable,  he 
cannot  recover  from  his  principal.18  Thus,  where  a  note  is 
given  on  an  election  bet,  and  is  therefore  void,  if  the  surety  pays 
it,  he  has  no  recourse  on  the  principal.19 

§  178.  Proper  Action  for  Surety  to  Bring  Against 
Principal. — The  proper  action  to  bring  against  the  principal 
by  the  surety  is,  at  common  law,  assumpsit  for  money  paid  at 
his  request.20  So  an  action  for  money  had  and  received  will 
not  lie  for  a  surety  who  has  paid  the  debt  for  his  principal ;  the 
action  must  be  for  money  laid  out  and  expended  for  the  prin- 
cipal.21 Where  parties  are  jointly  and  severally  liable  to  the 
creditor,  one  who  pays  the  debt  may  bring  an  action  for  money 
paid,  against  his  co-surety  for  contribution.22 

Where  the  surety  pays  a  note  of  his  principal,  whether  he  can 
have  the  note  assigned  to  him  and  then  sue  the  principal  upon 
it,  is  a  question  on  which  the  authorities  are  irreconcilable.  It 
is  held  by  one  line  of  decisions  that  where  a  surety  pays  a  note 
and  has  it  assigned  to  him,  he  is  entitled  to  maintain  an  action 
of  implied  assumpsit  for  the  amount  paid,  and  he  can  not  sus- 
tain an  action  upon  the  note  against  his  principal  ;23  because  the 

"Appleton  v.  Bascom,  3  Met.  169;  Lidderdale  v.  Robinson,  2  Brock.  159; 
Pitt  v.  Prussard,  8  Mees.  &  W.  538;  Hazleton  v.  Valentine,  113  Mass.  472. 

"Sponhauer  v.  Malloy,  21  Ind.  App.  287. 

"Harley  v.  Stapleton,  24  Mo.  248. 

50Mowry  v.  Adams,  14  Mass.  337. 

"Ford  v.  Keith.  1  Mass.  139:  Powell  v.  Smith,  8  Johns).  249. 

MSteckel  v.  Steckel,  28  Pa.  St.  233:  Mansfield  v.  Edwards,  136  Mass.  15. 

"Frevert  v.  Henry,  14  Nev.  191;  Hulet  v.  Soullard,  26  Vt.  295;  Copis  v. 
Middleton.  1  Turn.  &  Russ.  224;  Hodgson  v.  Shaw,  3  Mylne  &  K.  183; 
Smith  v.  Sawyer,  5  Me.  504. 


1B0  SURETYSHIP  AXD  GUARAXTY.  (Ch.  7 

payment  by  the  surety  goes  to  the  whole  promise  of  the  note, 
and  when  the  entire  promise  of  the  note  is  met  and  extin- 
guished, it  cannot  afterwards  be  received  as  a  subsisting  con- 
tract against  the  principal  co-signer,  and  the  surety  cannot 
therefore  bring  suit  on  it  against  the  principal.24 

The  principle  as  to  the  right  of  an  indorser  upon  a  note  is 
different  from  that  which  controls  a  surety.  For  a  note  taken 
up  by  the  indorser  who  is  not  directly  liable  on  the  note  may  be 
again  put  in  circulation,  or  upon  the  market,  and  the  promisor 
is  not,  in  such  case,  prejudiced  by  such  a  transfer,  and  the  note 
remains  good  against  the  maker.  Where  the  note  is  taken  up 
under  such  circumstances  it  is  not  in  fact  paid.  But  where  one 
of  several  joint  obligors  or  promisors,  who  is  liable  directly  upon 
the  note  for  its  whole  amount,  pays  such  note,  the  note  is  neces- 
sarily extinguished,  and  hence  a  surety  cannot  use  it  against  his 
principal.  25 

The  other  line  of  authorities  hold  that  the  payment  of  a  note 
by  the  surety  is  not,  as  between  himself  and  the  principal,  an 
extinguishment  of  the  same,  and  the  surety's  right  of  action 
against  the  principal  is  upon  the  note,  and  not  on  implied 
assumpsit,26  because  the  surety  may  be  substituted  to  the  place 
occupied  by  the  creditor,  not  only  as  to  collaterals,  but  as  to 
the  original  note.27 

§  179.  Surety  to  Oxe  of  Partxers. — The  surety  can  look 
for  reimbursement  only  to  the  rights  of  his  principal,  and  not 
to  a  stranger.  So  where  a  surety  is  on  the  bond  of  one  of  sev- 
eral partners,  he  cannot  look  to  the  partnership  for  indemnity, 
if  he  has  to  pay  the  debt,  though  the  bond  was  given  to  secure 
a  partnership  debt.  The  surety  cannot  charge  any  other  per- 
son as  his  principal  except  the  one  who  was  principal  at  the  time 

u  Hopkins  v.  Farwdl,  32  N.  H.  425;  Joyce  v.  Joyce,  1  Bu9h,  474;  Bryant 
v.  Smith,  10  Cush.  171.     See  Hurd's  111.  Stat.  (1895), 1062,  sec.  7c. 

"Davis  v.  Stevens,  10  N.  H.  186. 

"Tutt  v.  Thornton.  57  Tex.  35,  following  Sublet  v.  McKinney,  19  Tex. 
438,  and  overruling  Hollinan  v.  lingers.  0  Tex.  91. 

"Lumpkins  v.  Mills,  4  Ga.  343.     Compare  Boyd  v.  Beville,  91  Tex.  439. 


§    180)  RIGHTS   AND   REMEDIES    OF    SURETY.  131 

of  making  the  contract  of  suretyship.  No  privity  can  exist 
between  the  parties  except  that  which  arises  on  the  bond  or  con- 
tract, and  implied  assumpsit  cannot  arise  beyond  the  parties  on 
the  bond  or  in  the  contract.28 

In  like  manner,  where  a  promissory  note  is  knowingly  taken 
by  a  creditor  of  one  partner  for  his  separate  debt,  but  signed  by 
such  partner  in  the  name  of  the  firm,  but  without  the  consent  of 
the  other  partners,  and  also  executed  by  a  person  who  supposed 
he  was  surety  for  the  firm,  is  not  binding  upon  the  partnership, 
nor  upon  the  surety.29  The  instrument  must  show  the  privity 
between  the  parties,  and  cannot  be  extended  beyond  such  limits.30 

§  180.  Surety  Giving  His  Own  Note  in  Payment  of  the 
Debt. — The  surety  may  pay  the  principal's  debt  after  due,  by 
giving  his  own  negotiable  note,  provided  the  creditor  receives  it 
as  payment,  and  thereupon  may  maintain  an  action  against  the 
principal  for  reimbursement.31  However,  the  authorities  are 
not  uniform  upon  this  subject.  In  some  of  the  States  it  is  held 
that  the  surety  cannot  recover  of  the  principal  until  he  has  paid 
the  money,  and  that  the  giving  of  a  note  is  not  sufficient.32 
Many  of  the  cases  hold  that  if  the  surety  discharges  the  debt  by 
his  negotiable  note,  he  can  maintain  an  action  against  the  prin- 
cipal ;  but  if  he  pays  the  debt  by  means  of  a  bond  or  any  non- 
negotiable  instrument,  he  cannot  maintain  an  action  until  he 
pays  it,  because  such  non-negotiable  instrument  is  not  analogous 
to  money.33 

28  Tom  v.  Goodrich,  2  Johns.  213;  Krafts  v.  Creighton,  3  Rich.  (S. 
Car.)    273. 

MHagar  v.  Mounts,  3  Blackf.  57. 

30  Barter  v.  Moore,  5  Blackf.  367. 

"Doolittle  v.  Dwight,  2  Met.  561;  Pearson  v.  Parker,  3  N.  H.  366; 
Witherby  v.  Mann,  11  John.  518;  Sapp  v.  Aiken,  68  Iowa,  699;  Rizer  v. 
Callen,  27  Kan.  339;   White  v.  Miller,  47  Ind.  385. 

32  Brisindine  v.  Martin,  1  Ired.  (N.  Car.)  286:  Nowland  v.  Martin.  1 
Ired.  (N.  Car.)  397;  Romine  v.  Romine,  59  Ind.  351;  Lynch  v.  Hancock, 
14  S.  Car.  66. 

"Boulward  v.  Robinson,  8  Tex.  327;  Peters  v.  Bayhill,  1  Hill  (S.  Car.), 
237;  Barth  v.  Graf,  101  Wis.  27;  Stone  v.  Farwell,  83  Cal.  547;  Bennett  v. 


132  SUEETYSHIP  AND  GUARANTY.  (Ch.  % 

The  reason  of  the  rule  is,  that;  if  the  creditor  takes  the  nego- 
tiable note  of  the  surety  as  absolute  payment,  the  surety  can 
then  sue  the  principal  for  the  debt,  which  must  of  course  be  due; 
by  giving  his  own  obligation  he  discharges  the  original  debt  of 
the  principal,  and  the  latter  is  as  much  benefited  as  if  he  had 
discharged  it  by  actual  payment  of  money.  But  the  rule  must 
be  applied  only  where  the  surety,  by  giving  his  note,  has  extin- 
guished the  original  debt.  This  rule  has  been  criticised  because 
the  surety  may  recover  the  whole  amount  from  his  principal  and 
never  pay  his  own  note,  or  get  the  debt  reduced  by  compromise, 
and  thus  violate  the  cardinal  rule  that  the  surety  shall  not  specu- 
late out  of  the  principal. 

§  181.  Debt  Satisfied  Out  of  the  Surety's  Property. — 
If  the  surety  pays  his  principal's  debt  by  giving  property,84  or  if 
his  property  be  taken  on  legal  process,35  he  can,  at  once,  bring 
action  against  his  principal  for  reimbursement.  Thus,  where 
the  surety's  land  has  been  levied  on  to  satisfy  the  debt  of  his 
principal,  he  may  maintain  an  action  against  the  principal  for 
money  paid;36  and  so  by  paying  the  principal's  debt  in  land, 
the  surety  can  begin  immediate  action  against  his  principal  for 
money  paid  and  expended  for  the  latter.37 

§  182.  When  the  Surety's  Right  of  Action  is  Complete. 
— It  is  settled  that  no  action  can  be  maintained  by  the  surety 
upon  an  implied  promise,  if  the  principal  has  made  default, 
without  first  making  payment  of  the  debt,38  except  where  the 

Buchanan,  3  Ind.  47 ;  Morrison  v.  Berkey,  7  Serg.  &  R.  238 ;  Cummins  v. 
Hockley,  8  Johns.  202;  Romine  v.  Romine,  59  Ind.  346;  Huse  v.  Ames,  104 
Mo.  91. 

"Bonney  v.  Seely,  2  Wend.  481. 

"Burns  v.  Parish,  3  B.  Mon.  8;  Clemens  v.  Prout,  3  Stew.  &  P. 
(Ala.)    345. 

"  Lord  v.  Staples,  23  N.  H.  448. 

"  Bonney  v.  Seely,  2  Wend.  481. 

"Lane  v.  Westmoreland,  79  Ala.  372;  Stone  v.  Hammell,  83  Cal.  547; 
Kimmel  v.  Lowe,  28  Minn.  265;  Covey  v.  Neff,  63  Ind.  392;  Hearn  v. 
Keath,  63  Mo.  84. 


§    183)  EIGHTS   AND    REMEDIES    OF    SURETY.  133 

principal  has  broken  his  promise  to  do  or  refrain  from  doing 
some  particular  act  or  thing  or  to  save  the  surety  from  some 
charge  or  liability.  Thus,  where  the  maker  of  a  note  agrees 
with  the  surety  to  pay  the  amount  of  the  note  to  the  payee  on  a 
given  day,  but  makes  default,  the  surety  can  recover  from  his 
principal  without  first  making  payment  of  the  note.33 

In  like  manner,  where  a  partnership  is  dissolved  by  one  part- 
ner leaving  the  firm  with  the  debts  outstanding,  and  a  new  firm 
agrees  with  the  outgoing  partner  to  pay  the  debt  of  the  old  part- 
nership and  save  him  harmless  from  any  costs,  trouble  or  liabil- 
ity on  the  account  of  the  same,  upon  default  of  the  new  firm,  the 
partner  who  withdrew  can  recover  against  the  new  firm  without 
first  paying  such  debts.40  When  an  obligation  to  do  a  particu- 
lar thing  or  to  pay  a  debt  for  which  the  covenantee  is  liable,  or  to 
indemnify  against  liability,  is  broken,  the  right  of  action  is 
complete  upon  the  principal's  failure  to  do  the  particular  thing 
he  agreed  to  perform  or  to  pay  the  debt  or  discharge  the  lia- 
bility.41 

If  the  contract  be  one  of  indemnity  simply,  and  nothing  more, 
then  damages  must  be  shown  before  the  party  indemnified  is 
entitled  to  recover;  but  if  there  be  an  affirmative  contract  to  do 
a  certain  act  or  to  pay  a  certain  sum  or  sums  of  money,  then  the 
surety  can  sue  the  principal  before  paying  the  debt  to  the 
creditor.42 

§  183.  Liability  of  Principal  for  Surety's  Costs  and 
Interest. — The  surety  can  recover  back  the  money  paid  by  him 
for  the  principal's  debt  with  interest.43     The  surety  can  also 

88  Loosemore  v.  Radford,  9  Mees.  &  W.  657. 
*°Lathrop  v.  Atwood,  21  Conn.  117. 

41  Kohler  v.  Mattage,  72  N.  Y.  259 ;  Merchants,  etc.,  Bank  v.  Cumings, 
149  N.  Y.  360;  Barth  v.  Graf,  101  Wis.  27. 

42  Wilson  v.  Stilwell,  9  Ohio  St.  470:  Post  v.  Jackson,  17  Johns.  239; 
Dorrington  v.  Minnick,  15  Neb.  397;  Hall  v.  Nash,  10  Mich.  303;  Holmes  v. 
Rhodes,  1  Bos.  &  P.  638. 

"Barth  v.  Graf,  101  Wis.  27;  Whereatt  v.  Ellis,  103  Wis.  348;  Hearne  v. 
Heath,  63  Mo.  84 ;  Child  v.  Powder  Works,  44  N.  H.  354 ;  Hayden  v.  Cabot, 
17  Mass.  169. 


134  SURETYSHIP    AND    GUARANTY.  (Oil.  7 

recover  the  reasonable  costs  lie  has  been  compelled  to  pay  in  his 
action  brought  to  recover  from  the  principal.44  Upon  this  im- 
plied contract  the  surety  cannot  recover  a  greater  amount  than 
he  has  paid  for  the  principal  with  interest  So  upon  an  action  to 
reimburse  himself  for  a  payment  of  a  note  which  he  had  signed 
providing  for  attorney  fees  upon  its  collection,  he  cannot  recover 
for  such  fees,  for  the  action  is  upon  the  implied  promise,  and 
not  upon  the  note.45  But  in  those  States  where  the  surety  can 
sue  on  the  note  which  he  has  paid  for  his  principal,  he  can 
recover  attorney's  fees  stipulated  in  the  note,46  because  he  is 
subrogated  to  the  place  of  the  creditor,  who  might  collect  such 
principal  with  interest  and  also  the  attorney  fees.47 

Where  the  surety  imposes  improper  defenses,  thereby  largely 
increasing  the  cost  of  litigation,  he  will  be  charged  with  the  cost 
of  the  suit.48  So  the  principal  is  not  liable  for  the  costs  and 
expenses  unnecessarily  incurred  by  the  surety  in  litigation  car- 
ried on  by  him  in  order  to  get  rid  of  his  liability  or  defeat  the 
efforts  of  the  party  seeking  to  enforce  it.49  It  is  incumbent  upon 
the  surety  seeking  to  recover  from  his  principal  costs  and  ex- 
pense incurred  in  litigation,  to  show  that  the  litigation  was 
entered  into  in  good  faith  and  upon  reasonable  grounds,  and 
was  a  measure  of  defense  necessary  to  the  interest  of  himself 
and  principal,  and  was  calculated  so  to  result.50 

An  accommodation  indorser  has  two  remedies;  he  may  sue  on 
the  note  or  sue  for  money  paid.  If  he  sues  on  the  note  he  can 
only  recover  the  amount  with  interest.  If  he  sues  for  money 
paid  he  can  recover  the  amount  with  interest  and  also  the  costs.51 

"Apgar  v.  Wilson,  24  N.  J.  L.  812;  Thompson  v.  Taylor,  72  N.  Y.  32. 

**  Gieseke  v.  Johnson,  115  Incl.  309. 

"Carpenter  v.  Minter,  7:!  Tex.  370. 

47  Worsham    v.   Stevens,   06  Tex.   SO. 

"May  v.  May,  1!)   Fla.  373. 

"Wynn  v.  Brooke,  5  Hawle.  106. 

"Whitworth  v.  Tilman,  40  Miss.  70;  Redfield  V.  Haight,  27  Conn.  31; 
Cranmer  v.  MeSworrls.  26  W.  Va.  412;  Thompson  v.  Taylor,  72  N.  Y.  32. 
6ee,  also,  Holmes  v.  Ward,  24  Barb.  546. 

•'  Burton  v.  Stewart,  62  Barb.  194. 


§    184,  185)        BIGHTS    AND    REMEDIES    OF   SURETY.  135 

An  indorser  who  has  been  compelled  to  pay  cannot  recover 
costs  against  the  drawer,  because  he  ought  to  pay  without  suit.52 
The  surety  may  recover  both  the  penalty  and  interest.53 

§  184.  Recovery  of  Consequential  Damages. — In  some 
cases  consequential  damages  may  be  recovered.  Thus,  where 
the  surety  can  show  that  by  reason  of  the  non-payment  of  the 
debt,  he  has  suffered  damages  beyond  the  principal  and  interest 
which  he  had  been  compelled  to  pay,  he  is  entitled  to  recover 
that  damage  from  the  principal.54  But  this  is  seldom  the  case, 
and  the  general  rule  is  the  surety  cannot  recover  of  the  princi- 
pal remote  or  consequential  damages  arising  out  of  the  contract 
of  suretyship.55  Thus,  a  surety  who  pays  the  debt  is  not  entitled 
to  remuneration  for  loss  sustained  by  a  forced  or  hasty  sale  of 
his  property  to  raise  the  money,  and  can  only  recover  the  money 
paid  with  legal  interest  by  way  of  damages.  To  provide  against 
other  consequences,  the  surety  must  take  special  indemnity, 
Hence,  if  the  surety  is  put  into  prison  or  his  goods  are  sold  at 
a  sacrifice,  this  will  not  be  legal  grounds. of  suit  for  indemnity, 
because  they  may  be  avoided  by  payment  which  he  agreed  to 
make  in  case  the  principal  defaulted.56 

§  185.  Payment  oi  Usury  by  the  Surety. — A  surety  may 
pay  a  usurious  debt  of  his  principal,  under  ordinary  circum- 
stances, and  then  collect  the  whole  amount  from  his  principal, 
unless  the  principal  before  payment  has  notified  him  not  to  pay 
it.57     But  if  the  usury  makes  the  debt  or  note  void,  and  the 

"Simpson  v.  Griffin,  9  Johns.  131;  Roach  v.  Thompson,  M.  &  M.  487. 
Compare  Whitehousc  v.  Glass,  7  Grant  Ch.  47. 

"Whereatt  v.  Ellis,  103  Wis.  348.  See,  also.  United  States  v.  Curtis, 
100  U.  S.  119;  Bank  v.  Smith,  12  Allen,  293;  Frink  v.  Express  Co.,  82 
Ga.  33;   Benehfield  v.  Haffey    34  Kan.  42. 

•'Baddy  v.  Bank,  34  Ch.  Div.  536. 

15  Vance  v   Lancastei,  3  Hayw    (Tenn.)   130. 

^Hayden  v.  Cabot,  17  Mass.  169;  Powell  v.  Smith,  8  Johns.  250. 

"Ford  v  Keith.  1  Mass.  139;  Jackson  v.  Jackson,  51  Vt.  253;  Kock  v. 
Block,  29  Ohio  St  565  Compare  Hargraves  v.  Lewis,  3  Ga.  162;  Lueking 
v.  Gegg,  12  Bush,  298;  Thurston  v.  Prentiss,  1  Mich.  193;  Jones  v.  Joyner, 
8  Ga.  562 


136  SURETYSHIP  AND  GUARANTY.  (Ch.  7 

I 

surety,  knowing  such  to  be  the  case,  pays  the  whole  amount  with- 
out request  by  the  principal,  the  surety  is  not  entitled  to  relief, 
even  under  a  mortgage  to  secure  him  against  liability  as  such 
surety.58 

When  the  defense  of  usury  is  not  available  to  the  principal, 
it  cannot  be  to  the  surety.59 

§  186.  "What  Amount  the  Surety  Can  Collect  From 
the  Principal. — The  surety  can  collect  from  his  principal  only 
the  amount  he  has  paid.  If  the  creditor  remits  the  debt  as  a 
gratuity  to  the  surety,  the  surety  cannot  recover  anything  from 
the  principal,  because  he  has  lost  nothing.  If  the  surety  extin- 
guishes the  debt  for  less  than  the  whole  amount  due  he  can  only 
recover  what  he  actually  paid.60  And  so  if  the  surety  pays  the 
debt  in  depreciated  currency,  he  can  only  recover  from  the  prin- 
cipal the  market  value  of  the  currency  at  the  time  payment  was 
made.61 

The  contract  between  the  principal  and  surety  is  for  in- 
demnity only,  and  therefore  if  the  surety  discharges  the  obliga- 
tion for  a  less  sum  than  its  full  amount  he  can  only  claim 
against  the  principal  the  sum  so  paid.62  But  an  accommoda- 
tion indorser  has  the  same  right  to  purchase  negotiable  paper  on 
which  he  is  liable  with  any  other  person,  and  so  when  he  becomes 
purchaser  of  such  paper,  he  is  entitled  to  recover  the  full  amount 
due  from  the  maker,  without  regard  to  what  he  paid  for  it.63 

§  187.  Joint  Suit  by  Sureties. — Sureties  cannot  maintain 
a  joint  action  against  their  principal  unless  the  payment  is  made 
from  a  joint  fund.     When  each  surety  furnishes  money  to  pay 

M  Roe  v.  Kiser,  62  Ark.  92. 

"Pugh  v.  Conover,  11  W.  Va.  523;  Freese  v.  Brownell,  35  N.  J.  L.  285. 

90  Bonney  v.  Seely,  2  Wend.  481 ;  Reed  v.  Norris,  2  Myl.  &  Cr.  362 ;  Butcher 
v.  Chandler,  14  Ves.  567;  Snyder  v.  Blair,  33  N.  J.  Eq.  208;  Delaware,  etc., 
R.  R.  Co.  v-  Iron  Co.,  38  N.  J.  Eq.  151. 

"  Butler  v.  Butler,  8  W.  Va.  674;  Matthews  v.  Hall,  21  W.  Va.  510. 

■Kendrick  v.  Forney,  22  Gratt.  748;  Waldrip  v.  Black,  74  Cal.  409; 
Carpenter  v.  Minter,  72  T<x.  370;  Kuton  v.  Lambert,  1  Neb.  339;  Owings  t. 
Owinps,  3  J.  J.  Marsh.  r>90;  Oiewke  v.  Johnson,  115  Ind.  308. 

"  Fowler  v.  Strickland,  107  Mass.  552. 


§    188)  BIGHTS   AND   REMEDIES    OF    SURETY.  137 

the  debt,  ol  the  principal,  the  action,  to  recover  the  same  must  be 
separate  and  not  joint.64  But  where  several  parties,  each  of 
whom  is  responsible  for  an  entire  sum  due  from  another  join  in 
making  the  payment  of  that  sum  by  a  contribution  agreed  on 
among  themselves  for  that  purpose,  they  may  join  in  one  action 
to  recovei  it  from  the  person  foi  whose  benefit  the  payment  has 
been  made.65  Where  there  is  no  community  of  interest  in  the 
money  paid,  a  joint  action  cannot  be  maintained.66  But  the 
rule  is  otherwise  where  there  is  a  community  of  interest  in  the 
fund  appropriated  to  the  payment  of  the  debt.  Thus,  where  the 
sureties  deposit  a  sum  with  the  creditor  to  their  joint  order,  to 
be  held  as  collateral  security  for  their  joint  liability,  and  from 
which  such  liability  is  finally  discharged,  that  is  a  joint  fimd, 
although  made  up  in  the  first  instance  from  individual  deposits 
by  several  sureties.67  In  general,  sureties  may  sue  jointly  when 
they  have  satisfied  the  debt  by  giving  their  joint  note;68  or  if 
they  pay  from  a  joint  fund  which  they  have  provided  for  that 
purpose;69  or  if  they  have  paid  a  joint  judgment  in  equal 
shares  70  But  where  each  has  paid  his  share,  the  right  to  re- 
cover is  several,  and  the  sureties  must  enforce  their  rights  by 
separate  suits.71 

§  188.  Payment  of  Judgment  by  Subety. — When  the 
surety  has  paid  the  judgment  rendered  against  him  individually, 

84  Whitbeck  v.  Ramsey,  74  111.  App.  524;  Appleton  v.  Bascom.  3  Met.  169; 
Thomas  v.  Carter.  63  Vt.  609;  Lombard  v.  Cobb,  14  Me.  222;  Pearson  v. 
Parker,  3  N.  H.  366 ;  Osborne  v.  Harper,  5  East,  225. 

65  Clapp  v.  Rice,  15  Gray..  557. 

MDoremus  v.  Selden,  19  Johns.  213. 

"Thomas  v.  Carter,  63  Vt.  609.  See,  also,  Ross  v.  Allen,  67  111.  317; 
Gould  v    Gould,  8  Cow.  168. 

68  Ross  v.  Allen,  67  111.  317;  Rizei  v.  Callen,  27  Kan.  339;  Doolittle  v. 
Dwight,  2  Met.  561. 

69  Jewett  v.  Comforth,  3  Me.  107;  Whitbeck  v.  Ramsey,  74  111.  App.  524; 
Thomas  v.  Carter,  63  Vt.  609. 

70  Fletcher  v.  Jackson,  23  Vt.  581;  Clapp  v.  Rice,  15  Gray,  557;  Rizer  v. 
Callen.  27  Kan.  339;  Snider  v.  Greathouse,  16  Ark.  72. 

71  Sevier  v.  Roddie,  51  Mo.  580;  Doremus  v.  Selden,  19  Johns.  213;  Boggs 
v.  Curtin,  10  Serg.  &  R.  211;  Prescott  v.  Newell,  39  Vt.  82;  Whitbeck  v. 
Ramsey,  74  111.  App.  524. 


138  SURETYSHIP  AND  GUARANTY.  (Ch.  7 

or  jointly  against  him  and  his  principal,  he  can  recover  from  the 
principal  the  amount  paid  to  discharge  the  debt,  and  this  is  so 
though  the  surety  did  not  well  defend  the  suit.72  And  this  is 
the  law  though  the  surety  lets  the  judgment  go  by  default,  he 
not  knowing  of  any  defense  to  it.73 

It  behooves  the  principal,  if  he  has  any  defense,  to  set  it  up 
at  the  trial,  whether  the  action  is  brought  against  him  or  the 
surety  separately,  or  against  both.  If  he  does  not,  he  waives 
his  rights  in  the  matter,  and  cannot  set  up  such  defense  in  a  suit 
against  him  by  the  surety  for  reimbursement.74  And  in  gen- 
eral, the  surety,  upon  paying  the  judgment  against  him  or 
against  both,  may  recover  from  the  principal.75 

§  189.  Eight  to  Take  Indemnity  From  the  Principal. — 
The  principal  may  indemnify  the  surety  against  loss,  and  the 
contract  will  be  valid.76  The  contingent  liability  of  the  surety 
and  the  promise  to  pay  if  the  principal  does  not  is  a  sufficient 
consideration  for  the  indemnity  contract.77  Justice  is  pro- 
moted by  permitting  a  surety  to  take  from  his  principal  some 
obligation  upon  which  he  may  acquire  a  lien  upon  the  property 
of  the  principal  to  provide  security  for  his  indemnity  in  case 
of  need  before  he  has  actually  been  compelled  to  pay  the  debt.78 
But  such  security  can  only  be  applied  where  the  surety  has  either 
paid  the  debt,  or  has  become  immediately  liable  for  its  pay- 
ment ;79  and  the  surety  may  be  compelled  to  apply  the  collaterals 
or  security  in  his  hands  to  the  payment  of  the  debt.80 

At  common  law  an  insolvent  debtor  has  a  right  to  sell  or  trans- 

"  Rice  v.  Rice.  14  B.  Mon.  417;  Doran  v.  Davis,  43  Iowa,  86. 

"  Stinaon  v.  Brennan,  Cheves  (S.  Car.),  15. 

T4  Hare  v.  Grant,  77  N.  Car.  203;  Konitzky  v.  Meyer,  49  N.  Y.  571. 

"Chandler  v.  Higgins,  109  111.  G02;  Kendrick  v.  Rice,  16  Tex  254; 
Konitzky  v.  Meyer,  49  in    Y  571. 

"Essex  Chosen  Freeholders  v.  Lindsley,  41  N.  J.  Eq.  189;  Tudor  v. 
DeLong,  18  Mont   499;  Kassing  v.  Bank,  74  111.  16. 

77Haseltine  v.  Guild,  11  N   H.  390. 

"Little  v.  Little,  13  Pick.  426;  Kramer  v.  Bank,  15  Ohio,  253;  Grimes  v. 
Sherman,  25  Neb.  843. 

"  Constant  v.  Matteson,  22  111-  546. 

"McKnight  v.  Bradley,  10  Rich.  Eq.   (S.  Car.)   557. 


§    190)  EIGHTS   AND   REMEDIES    OF    SURETY.  139 

fer  the  whole  or  any  portion  of  his  property  to  one  or  more  of 
his  creditors  in  payment  of  or  to  secure  his  debt,  when  that  is  his 
honest  purpose,  although  the  effect  of  the  sale  or  transfer  is  to 
place  his  property  beyond  the  reach  of  his  other  creditors  and 
render  their  debts  uncollectible.81 

§  190.  When  the  Principal,  is  Not  Liable. — In  order  to 
make  the  principal  reimburse  the  surety  who  has  paid  the  debt, 
the  principal  must  be  liable  for  the  debt  paid,  except  in  case  of 
disability.82  For  the  right  of  the  surety  to  recover  in  a  suit 
against  the  principal  for  paying  his  debt  depends  on  the  ques- 
tion whether  the  surety  is  legally  bound  to  pay  it.  The  volun- 
tary payment  by  the  surety,  although  made  under  a  mistaken 
apprehension  as  to  his  legal  liability,  will  not  make  the  principal 
liable.  The  surety's  recovery  can  only  arise  from  payment  of 
money  which  he  was  legally  bound  to  pay  according  to  the 
original  contract  of  suretyship.83  If  the  surety  knows  of  facts 
which  will  discharge  him  or  his  principal,  and  pays  the  creditor, 
then  he  cannot  recover  from  the  principal.84  If  the  surety,  to 
shield  himself  against  liability  in  another  transaction,  procures 
his  debtor  to  surrender  to  him  a  debt  of  the  principal,  then  he 
cannot  recover  from  his  principal.85  And  so  where  the  trans- 
action is  contrary  to  law,  and  therefore  the  principal  is  not 
liable,  if  the  surety  pays  the  debt  he  cannot  recover  from  the 
principal.86  But  where  the  surety  has  been  compelled  to  pay 
the  debt  of  his  principal,  without  any  fraud  or  negligence  on  his 
part,  though  the  obligation  is  without  consideration,  he  can 
recover.87  If  he  pays  a  debt  barred  by  the  statute  of  limitations, 
then  he  cannot  recover  from  the  principal,88  because  the  princi- 

"Thompkins  v.  Hunter,  149  N.  Y.  117;  Dodge  v.  McKeehnie,  156 
N.  Y.  514. 

82  Sponhaur  v.  Malloy,  21  Ind.  App.  287. 

83  Bancroft  v.  Abbott,  3  Allen,  524. 

"Russell  v.  Failor,  1  Ohio  St.  327;  Noble  v.  Blount,  77  Mo.  235. 
"McCrory  v.  Parks,  18  Ohio  St.  1. 
"Davis  v.  Stokes  County,  74  N.  Car.  374. 
87  Frith  v.  Sprague,  14  Mass.  455. 

85  Stone  v.  Hammell,  83  Cal.  547;  Halshutt  v.  Pegram,  21  La.  Ann.  722; 
Elliott  v.  Nichols,  7  Gill  (Md.),  85.     See  sec.  173. 


140  SURETYSHIP    AND    GUARANTY.  (Ch.  7 

pal  is  under  no  legal  obligation  to  the  creditor  to  pay  the  debt 
barred  by  the  statute  of  limitations.89 

§  191.  Voluntary  Payment  by  Sueety. — A  surety  cannot 
recover  money  voluntarily  paid  by  him  for  a  principal,  for  the 
reason  that  a  surety  cannot  pay  a  debt  for  "which  his  principal 
is  not  liable,  and  then  sue  the  principal  for  reimbursement.30 
When  one  is  not  legally  bound  to  pay  the  debt  of  another,  if  he 
pays  it,  he  is  a  mere  volunteer  and  cannot,  therefore,  claim  reim- 
bursement from  the  debtor.91  The  party  in  paying  the  creditor 
must  act  under  compulsion  to  save  himself  from  loss,  in  order  to 
demand  reimbursement.92 

So  the  promise  to  pay  the  pre-existing  debt  of  another  person 
to  his  creditor,  requires  a  new  consideration  to  support  it,  and 
if  this  new  consideration  is  not  given,  the  creditor  cannot  enforce 
it  against  the  promisor,  or  surety.  Thus,  where  a  widow  gives 
a  note  for  a  pre-existing  debt  of  her  deceased  husband,  whose 
estate  is  insolvent,  she  is,  in  many  States,  only  a  surety,  and 
cannot  be  compelled  to  pay  the  debt,  or  note.93  And  she  cannot 
be  considered  liable  on  the  new  contract,  whether  she  be  consid- 
ered a  surety  or  a  mere  volunteer.94 

§  192.  Statute  of  Limitations  as  Between  Surety  and 
Principal. — The  statute  of  limitations  may  run  in  favor  of 
the  principal  so  as  to  bar  the  surety  from  recovering  from  the 
pnncipal.  The  statute  begins  to  run,  in  favor  of  the  principal, 
the  time  when  the  surety  has  paid  the  principal's  debt. 
There  is  an  implied  promise  on  the  part  of  the  principal  to  in- 
dei  -fy  the  surety  and  repay  him  all  money  that  he  may  be  com- 
piled to  pay  to  the  creditor,  in  consequence  of  his  liability  as 
surety :  and  until  the  surety  makes  payment,  there  is  no  breach 

"Elder  v.  Elder.  43  Kan.  514. 

"Opp  v.  Ward.  125  Ind.  241. 

■  Bearer  v.  Blanker,  94  111.  175. 

■Aetna  L  In?.  Co.  v.  Middleport.  124  U.  S.  534:  Hoover  v.  Epler.  52  Pa. 
St.  522. 

"Parsons  v.  Nitld.  137  Pa.  St.  385;  Hetherington  v.  Hixon.  40  Ala.  297; 
Sponhaur  v.  Malloy,  21  Ind.  App.  287. 

"Williams  v.  Nichols,  10  Grav,  83. 


§    192)  EIGHTS   AND   REMEDIES    OF   SURETY.  141 

of  this  implied  promise,  ana  nence  no  cause  of  action  against  the 
principal  for  such  payment  arises  until  the  payment  is  mada95 
And  so  the  statute  begins  to  run  in  favor  of  the  principal  at  the 
time  the  property  of  the  surety  is  sold  to  pay  the  debt.96 

Where  the  surety  has  paid  a  part,  and  thereafter  the  principal 
pays  the  balance,  the  statute  begins  to  run  from  the  time  of  the 
principal's  payment,  and  not  from  the  partial  payment  by  the 
surety,  because  until  the  last  payment  by  the  principal,  it  could 
not  be  ascertained  how  much  the  surety  would  be  obliged  to 
pay.97 

In  some  States  this  matter  is  controlled  by  statute.  Thus,  in 
Missouri,  if  the  surety  pays  his  principal's  debt,  he  must  present 
his  claim  for  reimbursement  to  the  Probate  Court,  in  case  of  the 
death  of  the  principal,  within  the  time  limited  by  statute,  or  lose 
his  right  to  recover.98  In  Illinois,  where  the  state  of  the  dece- 
dent's estate  is  sufficient  to  pay  all  claims,  a  failure  of  the  holder 
of  a  note  against  the  deceased  principal  to  have  it  probated  will 
release  the  surety  as  to  the  whole  debt,  and  where  the  estate  is 
sufficient  to  pay  a  part,  then  the  surety  is  released  pro  tanto*9 
Howevei,  the  claim  is  not  barred,  but  a  right  to  claim  a  distribut- 
ive share  out  of  the  property  inventoried  is  barred.  The  cred- 
itor still  has  the  right  to  satisfy  his  claim  out  of  subsequently 
discovered  estate  not  inventoried.100  And  as  the  surety  has  the 
right  to  be  subrogated  to  the  rights  of  the  creditor  when  he  is 
compelled  to  pay  the  principal's  debt,  he  would  have  no  greater 
rights  than  the  creditor  in  probating  the  claim. 

The  surety  having  paid  the  debt  which  the  principal  ought  to 
have  paid,  the  law  implies  a  promise  on  the  part  of  the  principal 
to  reimburse  the  surety,  and  the  latter  may  maintain  an  action 
on  the  implied  promise  as  for  money  paid  for  the  use  of  the 

**  Thayer  v.  Daniels,  110  Mass.  345;  Williams  v.  Williams,  5  Ohio,  444. 
*  Wesley  Church  v.  Moore,  10  Pa.  St.  273. 

•TDavies  v.  Humphreys,  6  Mees.  &  W.  153.  Compare  Williams  v.  Wil- 
liams, 5  Ohio,  444. 

M  Bauer  v   Gray,  18  Mo.  App    164. 
H  Waughop  v.  Bartlett,  165  111.  124. 
»•  Snydaeker  v.  Land  Co.,  154  111.  220. 


142  SURETYSHIP  AND  GUARANTY.  (Ch.  % 

principal.101  And  the  rule  as  to  the  running  of  the  statute  of 
limitations  in  bringing  such  case  is  the  same  that  applies  gener- 
ally to  other  actions  upon  implied  and  unwritten  contracts.102 

§  193.  Relief  of  Surety  in  Equity. — Equitable  relief  in 
behalf  of  the  surety  is  one  of  original  jurisdiction  in  a  court  of 
chancery.103  And  though  the  liability  of  a  surety  is  governed 
by  the  same  principles  at  law  as  in  equity,  a  court  of  equity  will 
not  send  a  party  suing  there  to  a  court  of  law  for  a  discharge  or 
relief;  but  will  extend  the  same  relief  and  exercise  the  same 
powers  in  behalf  of  sureties  that  can  be  exercised  by  law.104 

After  the  debt  is  due  equity  will  compel  the  creditor  or  obligee 
to  satisfy  his  demands  out  of  the  estate  of  the  principal  debtor,105 
and,  after  the  surety  has  paid  the  debt,  set  aside  a  fraudulent 
conveyance  of  the  principal.106 

101  Poe  v.  Dixon,  60  Ohio  St.  124. 

102Sherrod  v.  Woodward,  4  Dev.  L.  (N.  Car.)  360;  Thayer  v.  Daniels, 
110  Mass.  345;  Poe  v.  Dixon,  60  Ohio  St.  124;  Zuellig  v.  Hemerlie,  60 
Ohio  St.  27. 

103  New  York  Bank  Note  Co   v.  Kerr,  77  111.  App.  53. 

104  Viele  v.  Hoag,  24  Vt.  46 ;  Eyre  v.  Everett,  3  Hare,  567. 

105  Ardesco  Oil  Co.  v.  Oil  Co.,  66  Pa.  St.  375 ;  Philadelphia,  etc.,  R.  R.  Co. 
v.  Little,  41  N.  J.  Eq.  519;  Moore  v.  Topliff,  107  111.  241;  Smith  v.  Harbin, 
124  Ind.  434;  McMillen  v   Mason,  71  Wis.  405. 

108  Bragg  v.  Patterson,  85  Va.  233;  Strong  v.  Taylor,  79  Ind.  208;  Hat- 
field v.  Merod,  82  111.  113;  Choteau  v.  Jones,  11  111.  300. 


§    194)  BIGHTS    OF    CO-SUEETIES.  143 


CHAPTER  VIII. 

EIGHTS    OF    CO-SUEETIES. 

§  194.  Eight  to  Conteibution. — When  one  co-surety  pays 
the  debt  after  the  principal  has  defaulted,  he  is  entitled  to  con- 
tribution from  the  other  co-sureties.  The  obligation  of  contribu- 
tion is  not  founded  upon  contract,  but  on  the  principle  of 
equity.  This  principle  is  accepted  by  all  parties  under  cir- 
cumstances when  it  can  be  applied,  and  upon  this  ground  courts 
have  also  taken  jurisdiction  to  enforce  contribution.1  The 
equity  springs  out  of  the  proposition  that  where  two  or  more 
sureties  stand  in  the  same  relation  to  a  principal,  they  are 
entitled  equally  to  all  the  benefits  and  must  bear  equally  all  the 
burdens  of  the  position.  They  must  occupy  the  same  position 
in  respect  to  the  principal,  unless  equities  among  themselves 
give  an  advantage  to  one  ovei  the  others.2 

And  this  liability  to  contribution  exists  although  the  sureties 
are  ignorant  of  each  other's  engagement.3 

The  jurisdiction  of  all  law  courts  is  based  upon  the  doctrine 
that  the  equitable  principle  has  been  so  long  and  so  generally 
acknowledged  and  enforced  that  persons,  in  placing  themselves 
under  circumstances  to  which  contribution  applies,  may  be  sup- 

1  Ellesmere  Brewing  Co.  v.  Cooper  (1896),  1  Q.  B.  75;  Drummond  v. 
Yager,  10  111.  App.  380;  Paul  v.  Kaighn,  29  N.  J.  L.  480;  Robinson  v.  Boyd, 
60  Ohio  St.  57;  Craythorne  v.  Swinburne,  14  Ves.  169;  Paul  v.  Berry,  78 
111.  158;  Alderson  v.  Menes,  16  Nev.  298;  McDonald  v.  McGruder,  3  Pet. 
470;  Nielson  v  Fry.  16  Ohio  St.  552;  Patterson  v.  Patterson,  23  Pa.  St. 
464 ;  Norton  v.  Coons,  6  N.  Y.  33. 

1  Barry  v.  Ransom,  2  N.  Y.  462;  Ellesmere  Brewing  Co.  v.  Cooper  (1896), 
1  Q.  B.  75;  Wells  v   Miller,  66  N   Y.  255. 

^Craythorne  v.  Swinburne,  14  Ves.  160;  Robinson  v.  Boyd,  60  Ohio  St. 
57;  Norton  v.  Coons,  6  N.  Y.  33;  Chaffee  v.  Joi^es.  19  Pick.  2(10:  Durbin  v. 
Kunej>,  19  Oreg.  74;  Stovall  v.  Bank,  78  Va.  1S8:  Monson  v.  Drakeley,  40 
Conn  552:  Warner  v.  Morrison,  3  Allen,  566;  Whitehouse  v.  Hanson,  42 
N   H.  9;  Wells  v.  Miller,  66  N   Y.  255. 


144  SURETYSHIP  AND  GUARANTY.  (Ch.  8 

posed  to  act  under  the  dominion  of  contract  implied  from  the 
universality  of  that  principle.4 

The  obligation  of  co-sureties,  though  several,  is  not  collateral. 
It  is  for  the  same  thing.  They  have  a  right  of  indemnity 
against  their  principal,  and  there  is  generally  such  mutuality 
between  them  as  to  render  the  right  a  duty  of  contribution.5 
But  a  voluntary  payment  of  the  debt  by  one  of  the  sureties  does 
not  give  the  right  of  contribution.6  Thus,  one  of  the  sureties 
who  pays  a  judgment  against  his  principal  which  is  not  legally 
enforceable,  cannot  recover  contribution.7  But  where  a  surety 
pays  a  note  in  good  faith,  not  knowing  of  a  defense,  he  is  en- 
titled to  contribution.8  If  the  surety  is  legally  bound,  and  a 
demand  is  made  by  the  creditor,  and  he  pays  without  a  suit,  he 
can  enforce  contribution.9  And  so  a  surety  has  a  right  to  con- 
tribution, if  he  pays  a  judgment  before  execution  is  issued;10 
or  if  the  debt  is  due  and  collectible;11  and  so  if  suit  is  brought 
and  he  pays  before  trial;12  and  he  may  pay  a  legal  debt  in  ad- 
vance and  then  have  contribution  at  maturity;13  also,  if  he  pays 
an  amount  settled  by  arbitration.14  In  Louisiana  the  surety 
must  wait  until  judgment  is  rendered.15  If  a  note  has  been 
altered  after  the  name  of  the  surety  paying  it,  this  does  not  pre- 
vent him  from  recovering  contribution,  because  he  has  a  right  to 
ratify  the  note  after  such  alteration.16     And  it  is  held  that  it 

« Lansdale  v.  Cox,  7  T.  B.  Mon.  401 ;  Pile  v.  McCay,  99  Tenn.  367. 

I  Monson  v.  Drakeley,  40  Conn.  552 ;  Covey  v.  Bostwick,  20  Ohio  St.  337. 
•Curtis  v.  Parks,  55  Cal.  106;  Skillin  v.  Merrill,  16  Mass   20;  Hadley  v. 

Murray,  112  Ala.  185. 

T  Smith  v.  Staples,  40  Conn.  90. 

•  Warner  v.  Morrison,  3  Allen,  566 ;  Hiehbone  v,  Fletcher,  66  Me.  209. 

•  Hondell  v.  Carroll,  90  Wis.  350. 

10  Buckner  v.  Stewart,  34  Ala   529 ;  Briggs  v.  Hinton,  14  Lea,  283 ;  Mason 
v.  Pierson,  69  Wis.  590. 

II  Pitt  v.  Purssard,  8  Mees  &  W.  538 ;  Warner  v.  Morrison,  3  Allen,  566. 
u  Machado  v.  Ferandez,  74  Cal.  362. 

"Craig  v.  Craig,  5  Rawle,  98;  Galson  v.  Brand,  75  111.  148;  Felton  v. 
Bissel,   25   Minn.   20. 

"Burnell  v.  Minot,  4  Moor,  340;   16  E.  C.  L.  375. 

"  Stockmeyer  v.  Oertling,  35  La.  Ann.  469. 
t"  Houck  v.  Graham,   106  Ind.   195.     Compare  Davis  v.  Bauer,  41   Ohio 
St;*257. 


§    195)  EIGHTS    or    CO-SURETIES.  145 

is  no  defense  that  the  original  note  was  void  for  want  of  con- 
sideration. If  one  of  the  sureties  pays  it  he  can  obtain  contri- 
bution.17 

A  judgment  against  one  surety  does  not  conclude  his  co-surety 
from  showing  there  was  no  liability,18  unless  he  was  party  to 
the  suit.19 

A  payment  of  a  judgment  of  one  co-surety  is  not  an  accord 
and  satisfaction  as  to  the  actions,-0  and  he  can  maintain,  at 
once,  an  action  against  his  co-sureties  for  contribution  and  with- 
out waiting  to  dispose  of  any  indemnity  that  the  principal  has 
provided  as  security.21 

Contribution  originally  was  enforceable  only  in  courts  of 
equity,  but  now  also  in  courts  of  law,  which  take  jurisdiction  on 
the  ground  of  an  implied  promise  on  the  part  of  each  joint 
debtor  or  surety  to  contribute  his  share  to  make  up  the  loss.22 

§  195.  Payment  by  Note. — One  surety  may  make  payment 
by  his  own  negotiable  note  when  the  debt  is  due,  and  then  com- 
pel contribution  from  the  other  co-sureties,  though  his  own  note 
is  not  yet  due.23  This  is  so  because  his  negotiable  note  is  equiv- 
alent to  money ;  and  as  the  maker  will  be  liable  to  the  indorser, 
he  might  be  subject  to  a  double  liability  unless  the  note  should 
be  deemed  as  payment  of  the  debt  for  which  it  was  given.  And 
substituting  a  negotiable  note  is  such  a  payment  as  will  entitle 
the  surety  who  gave  it  to  maintain  indebitatus  assumpsit  against 
the  co-surety  for  contribution;  because  indebitatus  assumpsit 
lies  only  upon  a  promise  to  pay  money  or  its  equivalent.     But 

17  Cane  v.  Burney,  6  Ala.  780. 

"Malin  v.  Buii,  13  Serg.  &  K.  441;  Cathcart  v.  Foulke,  13  Mo.  661; 
Thomas  v.  Huboell,  15  JN.    X.  405. 

"Rice  v.  Rice,  14  B.  Mon.  335;  Konitzky  v.  Meyer,  49  N.  Y.  571. 

20  Coffee  v.  Tevis,  17  Cal.  239;  Williams  v.  Kiehl  (Cal.),  59  Pac.  Rep.  762. 

"Johnson  v.  Vaughn,  65  111.  425;  Paulin  v.  Kaighn,  29  N.  J.  L.  483; 
Bachelder  v.  Fiske,  17  Mass.  464. 

84 Powers  v.  JNash,  37  Me.  322;  Oldham  v.  Brown,  28  Ohio  St.  41. 

M  Ralston  v.  Wood,  15  111.  171;  ISJixon  v.  Brand,  111  Ind.  137;  Chandler 
V.  Brainard,  14  Pick.  285;  Smith  v.  Mason,  44  Neb.  610;  Ryan  v.  Kruaen, 
76  Mo.  App.  496;  Wetherby  v.  Mann,  11  Johns.  518. 
10 


146  SURETYSHIP    AND    GUARANTY.  (Ch.  8 

where  one  of  several  sureties  has  satisfied  the  debt  without  ad- 
vancing any  money  or  anything  equivalent,  the  law  does  not 
imply  any  promise  by  a  co-surety  to  pay  money  in  contribu- 
tion;24 hence,  payment  by  a  bond  or  non-negotiable  paper  will 
not  entitle  the  surety  to  contribution.25 

But  in  some  jurisdictions  payment  made  in  any  mode,  either 
in  property,  negotiable  paper,  or  securities,  is  sufficient,  if  such 
payment  is  received  as  a  full  satisfaction  of  the  demand,  and 
will  be  treated  as  cash,  even  if  it  be  a  bond,26  because  a  bond  is 
equivalent  to  coin.27  And  the  payment  is  sufficient  to  compel 
contribution,  though  the  maker  becomes  insolvent  and  never 
pays  the  note.28  But  if  the  creditor  delivers  the  note  to  the 
maker  as  a  gift  before  the  surety  tries  to  compel  contribution, 
he  has  no  equity  to  recover  contribution  against  his  co-sureties.29 

§  196.  Enforcement  at  Law. — At  law,  if  one  co-surety  pays 
the  whole  debt,  his  right  to  contribution  is  complete.  But  he 
cannot  sue  two  or  more  jointly,  but  he  must  sue  each  separately, 
and  he  can  only  recover  from  each  an  aliquot  portion  of  the  debt, 
to  be  ascertained  by  the  number  of  sureties,  without  regard  to 
their  solvency.30  Thus,  where  a  co-surety  has  paid  a  note,  he  is 
entitled  to  contribution  from  each  of  his  co-sureties  in  aliquot 
parts  according  to  their  number,  with  interest  and  other  neces- 
sary expenses.3 1  But  when  the  co-surety  pays  no  attorney  fees, 
he  can  not  collect  them  pro  rata  from  his  co-sureties,  because  a 

**  Wetherby  v.  Mann,  11  Johns.  518. 

"White  v.  Miller,  47  Ind.  385;  Morrison  v.  Berkey,  7  Serg.  &  R.  238; 
Bouhward  v.  Robinson,  8  Tex.  32;  Cummings  v.  Hockley,  8  Johns,  202; 
Barth  v.  Graf,  101  Wis.  27;  Stone  v.  Farwell,  83  Cal.  547;  Huse  v.  Ames, 
104  Mo.  91;  Peters  v.  Bayhill,  1  Hill  (S.  Car.),  237. 

"Ralston  v.  Wood,  15  111.  159,  171;  Robertson  v.  Maxcey,  6  Dana,  104. 

"Cox  v.  Reed,  27  111.  434. 

"Owen  v.  McGehee,  61   Ala.  440. 

»  Stcbbins  v.  Mitchell,  82  Ky.  535. 

••"Sloo  v.  Pool,  15  111.  48;  Moore  v.  Bruner,  31  III.  App.  400;  Fischer  v. 
Gaither,  32  Oreg.  161;  Cowell  v.  Edwards,  2  Bos.  &  P.  268;  Morrison  v. 
Poyntz,  7  Dana,  307. 

"  RIothofT  v.  Dunham,  19  N.  J.  L.  181 ;  Acere  v.  Curtis,  68  Tex.  423;  Dodd 
v.  Winn,  27  Mo.  504. 


§    197)  RIGHTS    OF    CO-SURETIES.  147 

co-surety  cannot  speculate  off  his  co-sureties.32  Where  the  em- 
ployment of  counsel  is  prudent  and  necessary,  the  surety  who 
paye  attorney  fees  under  such  circumstances  is  entitled  to  con- 
tribution, the  same  as  another  surety  who  pays  the  judgment  or 
decree  recovered  against  him.33  So  contribution  may  be  en- 
forced for  necessary  traveling  expenses.34 

When  a  partnership  is  a  co-surety,  it  is  but  a  unit  as  to  the 
question  of  contribution.35 

In  some  of  the  States  contribution  is  given  at  law  as  well  as 
in  equity,  according  to  the  number  of  solvent  sureties.36  And 
so  in  those  States  where  the  distinction  between  law  and  equity 
has  been  abolished,  the  number  of  solvent  sureties  liable  to  con- 
tribution is  the  basis  of  apportionment.37  And  contribution  is 
apportioned  among  solvent  sureties  by  statute  in  some  States.38 

§  197.  Enforcement  in  Equity. — In  equity,  in  a  suit  by 
a  surety  against  his  co-surety  for  contribution,  only  the  solvent 
co-sureties  are  taken  into  account.39  The  surety  can  recover  in 
equity  a  pro  rata  amount  paid  by  taking  into  consideration  the 
number  of  solvent  sureties  by  excluding  the  insolvent  ones.40 
rAnd  in  considering  the  number  of  solvent  co-sureties,  the  re- 
moval of  a  surety  from  the  State  is,  for  this  purpose,  equiva- 
lent to  insolvency,  and  the  non-resident  co-surety  will  not  be 

w  Acers  v.  Curtis,  68  Tex.  423. 

"Fletcher  v.  Jackson,  23  Vt.  581;  Gross  v.  Davis,  87  Term.  226;  Davis 
v.  Emerson,  17  Me.  64. 

"Preston  v.  Campbell,  3  Haywood   (Tenn.),  20. 

*  Chaffee  v.  Jones,  19  Pick.  260. 

"Michael  v.  Allbright,  126  Ind.  172;  Currier  v.  Baker,  51  N.  H.  613; 
Mills  v.  Hyde,  19  Vt.  59;  Liddell  v.  Wiswell,  59  Vt.  365;  Harris  v.  Fergu- 
son, 2  Bailey  (S.  Car.),  L.  397. 

"Stewart  v.  Goulden,  52  Mich.  143;  Smith  v.  Mason,  44  Neb.  610; 
Roberts  v.  Trigg,  32  Gratt.  26 ;  Security  Ins.  Co.  v.  Ins.  Co.,  50  Conn.  233 ; 
Scott  v.  Bryan,  96  N.  Car.  289. 

M  Couch  v.  Terry,  12  Ala.  227;  Van  Petten  v.  Richardson,  68  Mo.  382; 
Faurot  v.  Gates,  86  Wis.  569;  Dodd  v.  Winn,  27  Mo.  504;  Magruder  v. 
Admire,  4  Mo.  App.  133. 

"  Gross  v.  Davis,  87  Tenn.  226. 

"Osterly  v.  Barber,  66  N.  Y.  433;  Braman  v.  Blanchard,  4  Wend.  435: 
Preston  v.  Preston,  4  Gratt.  88. 


148  SURETYSHIP    AND    GUARANTY.  (Ch.  8 

counted;41  and  so  an  insolvent  co-surety  need  not  be  made  a 
party  to  the  suit.42  At  law,  while  there  is  a  conflict  of  authority 
upon  the  subject,  the  weight  of  authority  seems  to  be  that  in- 
solvency of  the  principal  debtor  need  not  be  averred  in  order  to 
establish  the  right  of  contribution ;  because  this  right  is  founded 
upon  the  implied  promise  of  each  surety  to  pay  an  aliquot  part 
of  the  debt  in  case  of  the  principal's  default.  And  as  the  action 
against  each  is  separate  and  dependent  upon  an  enforcement  of 
the  strict  letter  of  the  implied  assumpsit,  the  default,  and  not  the 
insolvency  of  the  principal,  is  the  ingredient  that  renders  the 
remedy  effectual.  But  equity,  to  prevent  a  multiplicity  of  suits 
and  avoid  a  circuity  of  remedies.,  will  compel  the  surety  who 
has  paid  the  debt  to  recover  the  same  from  the  principal  if  he  is 
solvent,  on  the  theory  that  his  co-surety,  in  equity,  may  be  com- 
pelled to  contribute  in  excess  of  his  implied  agreement;  so  in 
that  forum  he  cannot  be  compelled  to  respond,  at  all,  if  the  prin- 
cipal is  solvent;  hence  the  necessity  of  alleging  the  insolvency 
of  the  principal  as  a  condition  precedent  to  the  right  of  con- 
tribution in  equity.  Many  decisions,  though  not  all,  support  this 
doctrine,  and  hold  that  it  is  incumbent  upon  the  plaintiff  in  a 
suit  in  equity  to  allege  the  insolvency  of  the  principal  as  a  con- 
dition precedent  to  the  enforcement  of  contribution  of  co- 
sureties.43 

§  198.  The  Co-surety  Cannot  Speculate  to  the  Injury 
of  His  Co-sureties. — The  surety  paying  cannot  speculate  and 
thereby  derive  benefits  not  shared  by  his  co-sureties.  Thus,  if 
a  co-surety  purchased  the  note  of  the  principal  for  less  than  its 
face  value,  his  co-sureties  are  entitled  to  share  in  the  benefits  of 

"Boardman  v.  Paige,  11  N.  H.  431;  Liddell  v.  Wiswell,  69  Vt.  365; 
M.Kcnna  v.  George,  2  Rich.  Eq.  (S.  Car.)  15;  Faurot  v.  Gates,  86  Wis. 
560;  Acers  v.  Curtis,  .68-Xex~-42.3.;.  Security  Ins.  Co.  v.  Ins.  Co.,  50  Conn. 
233;    HoHloy  v.  Taylor,  5  Dana,  159. 

".Johnson  v.  Vaughn,  65  111.  425;  Ellesmere  Brewing  Co.  v.  Cooper 
(1896),  1   Q.  B.  75. 

"Grose  v.  Davis,  87  Tpnn.  226;  10  Am.  St.  Rep.  637;  Morrison  v.  Poynte, 
7  Dana,  307 ;  Fischer  v.  Gaither,  32  Oreg.  161. 


§    199,  200)  EIGHTS    OF    CO-SURETIES.  149 

the  bargain.44  So  if  a  surety  pays  less  than  the  whole  debt, 
he  can  recover  only  the  pro  rata  share  from  the  other  sureties,  of 
•the  amount  he  paid.45  In  order  to  recover  of  the  co-sureties,  he 
must  pay  in  excess  of  his  share  of  the  debt.46  If  he  pays  the 
debt  in  property,  the  value  of  the  property  is  the  basis  upon 
which  contribution  can  be  enforced.47 

When  a  surety  has  bought  the  claim  of  his  principal  at  a  dis- 
count, he  cannot  compel  his  co-sureties  to  contribute  more  than 
their  just  proportion  of  the  sum  paid ;  otherwise  the  co-sureties 
would  stand  in  a  worse  position  than  the  principal  ;48  that  is, 
he  can  recover  only  the  proportionate  amount  of  the  sum  paid 
by  him  when  it  is  in  excess  of  his  share  of  payment.49 

§  199.  Surety  of  a  Surety. — A  surety  of  a  surety  is  not 
liable  to  contribution  to  a  debt  of  a  co-surety  of  the  principal.50 
Thus,  where  a  party  signs  a  note  as  security  for  one  who  is  him- 
self only  a  surety  for  the  principal  maker,  he  is  not  liable  in  a 
suit  for  contribtttion  by  the  one  for  whom  he  signed  as  surety.5 ! 

§  200.  Obligation  to  Contribute. — At  law  the  obligation 
to  contribute  is  a  several,  and  not  a  joint,  obligation.52      So  a 

44  Acers  v.  Curtis,  68  Tex.  423. 


46  Lowell  v,  Edwards,  2  Bos.  &  P.  268;  Browne  v.  Lee,  6  Barn.  &  C.  689; 
Morgan  v.  Smith.  70  N.  Y.  537;  Bryan  v.  McDonald,  15  Lea,  581;  Gourdin 
v.  Trenholm,  25  S.  Car.  362. 

46  Fletcher  v,  Grover,  11  N.  H.  368. 

47  Jones  v.  Bradford,  25  Ind.  305;  Hickman  v.  McCurdy,  7  J.  J. 
Marsh,  555. 

48  Mason  v.  Lord,  20  Pick.  447;  Currier  v.  Fellows,  27  N  H.  300;  Sin- 
clair v.  Redington,  56  N   H.  146;  Fuselier  v.  Babeneau,  14  La.  Ann.  777. 

4*Tarr  v.  Ravenscroft.  12  Gratt.  642;  Kelly  v  Page,  7  Gray,  213:  Owen 
v  McGehee,  61  Ala.  440;  In  re  Arcedeckna,  24  Ch,  Div.  709;  Edmonds  v. 
Sheahan.  47  Tex.  443 

50  Knox  v.  Vallandingham,  13  Smed.  &  M.  (Miss.)  520;  Tom  v.  Goodrich, 
2  Johns.  214;  Adams  v.  Flanagan,  36  Vt.  400;  Baldwin  v.  Fleming,  90  Ind. 
177.     Compare  Stout  v.  Vause,  1  Rob.  (Va.)   179. 

"Robertson  v.  Deatharge,  82  111.  511;  McCollum  v.  Broughton,  132 
Mo.  601. 

62  Adams  v.  Hayes,  120  N.  Car.  383;  Graves  v.  Smith,  4  Tex.  Civ.  App. 
537;  Johnson  v.  Harvey,  84  N.  Y.  363.^~ 


150  SURETYSHIP  AND  GUARANTY.  ((Jh.  8  ■ 

cosurety  who  is  a  non-resident,  is  not  a  necessary  party  defend- 
ant to  an  action  for  contribution,  as  the  liability  of  co-sureties  to 
each  other  is  not  joint,  but  several53  At  law,  he  can  only  re- 
cover from  each  co-surety  severally  an  aliquot  proportion  of  the 
debt,  ascertained  by  the  whole  number  of  co-sureties.54  And  at 
law  he  may  recover  under  the  common  counts  the  amount  due 
by  way  of  contribution  from  each  co-surety.55  And  he  may, 
recover  necessary  attorney  fees  and  other  expenses  in  litigation 
with  the  principal.56 

§  201.  Liability  of  Surety's  Estate. — One  surety  who 
has  paid  the  debt  is  entitled  to  be  subrogated  to  all  the  rights 
and  remedies  of  the  creditor  as  against  his  co-surety  in  pre- 
cisely the  same  manner  as  against  the  principal  debtor.  Hence, 
he  can  have  contribution  from  the  estate  of  a  co-surety  who  is 
dead.57  And  this  right  to  contribution  may  be  had  against  the 
heirs  of  the  co-surety,  after  the  discharge  of  the  administrator.58 
And  the  distributees  must  contribute  in  proportion  to  what  they 
have  received.59  It  is  the  general  rule  that  the  estate  of  a 
deceased  co-surety  is  liable  to  contribution,  whether  he  died 
before  or  after  the  liability  arises.60 

§  202.  Remedy  Against  Co-surety  Before  Payment. — 
A  co-surety,  before  he  pays  the  debt,  may  maintain  a  suit  in 

M  Voss  v.  Lewis,   126  Ind.   155. 

"Sloo  v.  Pool,  15  111.  47;  Moore  v.  Bruner,  31  111.  App.  400;  Porter  v. 
Horton,  80  111.  App.  333;  Odlin  v.  Greenleaf,  3  N.  H.  270;  Harvey  v.  Drew, 
82  111.  606. 

M  Porter  v.  Horton,  80  111.  App.  333 :  Powell  v.  Edwards,  2  Bos.  &  P.  267. 

68  Gross  v.  Davis,  87  Term.  226;  Fletcher  v.  Jackson,  23  Vt.  581;  Davis  v. 
Emerson,  17  Me.  64. 

"Pace  v.  Pace,  95  Va.  792;  Conover  v.  Hill.  76  111.  342;  Sanders  v.  Weel- 
bii'cr,  107  Ind.  266;  Johnson  v.  Harvey.  84  N.  Y.  363:  Lidderdale  v.  R.obin- 
Eor-  12  Wheat.  504:  Malil)  v.  Bull  1".  Serg.  &  R.  441  ;  Fletcher  v.  Jackson, 
23  Vt.  56;  Handley  v.  Heflin.  84  Ala.  ■ 

'U],}^nu  v.  Mitchell.  16  Flu.  510;  Stevens  v.  Tucker,  87  Ind.  100;  Zol- 
I         rer  ■•   Beth,  44  Md    359. 

"  Zollkk^fTer  v.   Seth,  44   Md.   350.     Compare  Primrose  v.   Bromley,   1 
/•■-    r>0;  Waters  v.  Rilev   2  Ear.  &  G.  (Md.)  305. 
liet  v.  Wyckort,  42  N.  J.  Eq.  642. 


§    203)  RIGHTS    OF    CO-SURETIES.  151 

equity  compelling  contribution,  after  the  debt  is  due  and  unpaid. 
Thus,  a  surety  against  whom  a  judgment  has  been  obtained  by 
the  creditor  for  the  full  amount  of  the  debt  secured,  but  who  has 
paid  nothing  in  respect  thereof,  can  maintain  an  action  against 
a  co-surety  to  compel  him  to  contribute  towards  the  common 
liability.61  Before  the  payment  of  the  debt  which  is  due,  any 
one  of  several  co-sureties  may  maintain  a  suit  in  equity  against 
his  co-surety  to  contribute  to  the  payment  of  the  debt  if  the  prin- 
cipal is  unable  to  pay  it.62 

And  so  a  surety  may  bring  suit  in  equity  against  a  co-surety 
for  contribution,  when  the  latter  is  about  to  make  a  fraudulent 
disposition  of  his  property  so  as  to  escape  liability  in  payment 
of  the  principal's  debt,  who  is  insolvent,63  But  when  the  surety 
is  primarily  liable  to  pay  the  debt,  his  action  at  law  or  in 
equity  cannot  be  maintained  until  he  has  paid  the  amount. 
Until  he  has  paid,  there  is  neither  an  equitable  obligation  or  an 
implied  contract  to  make  such  contribution.64 

§  203.  Co-sureties  Under  Different  Instruments. — It 
is  well  settled  that  parties  may  be  co-sureties  under  different 
instruments,  at  different  times,  and  without  the  knowledge  of 
each  other,  provided  that  the  obligations  into  which  they  enter 
are  for  the  same  engagement  and  for  the  same  principal.  It  is 
sufficient  for  the  right  to  claim  contribution  that  it  appears  that 
the  parties  are  under  obligation  to  pay  the  same  debt  as  sureties 
for  a  third  person.65  And  this  rule  applies  to  sureties  on  suc- 
cessive bonds.  Thus,  where  sureties  on  an  executor's  bond  are 
discharged  and  new  sureties  taken,  the  two  sets  of  sureties  be- 

"  Walmerhausen  v.  Gullick   (1893),  2  Ch.  514. 

83  Morrison  v.  Poyntz.  7  Dana,  307;  Hodgson  v.  Baldwin,  65  111.  532; 
Hyde  v.  Tracy,  2  Day   (Conn.),  492. 

C3Bowen  v.  Haskins,  45  Miss.  183;  Smith  v.  Rumsey,  33  Mich.  183. 

"Covey  v.  Bostwick,  20  Ohio  St.  337;  Gross  v.  Davis,  87  Tenn.  226; 
Bushnell  v.  Bushnell,  77  Wis.  435;  Gordon  v.  Eixey,  86  Va.  853;  Mason  v. 
Lord,  20  Pick.  447 ;  Weidmeyer  v.  Lardon,  66  Mo.  App.  520 ;  Morgan  v. 
Smith,  70  N.  Y.  512;   Glasscock  v.  Hamilton,  62  Tex.   166. 

"Golsen  v.  Brand,  75  111.  148;  Craythorne  v.  Swinhurne,  14  Ves.  164; 
In  re  Ennis  (1893),  3  Ch.  238;  Warner  v.  Morrison.  3  Ailon,  566;  Young  V. 
Shunk,  30  Minn.  503;  Aspinwall  v.  Sacchi,  57  N.  Y.  331. 


152  SURETYSHIP    AND    GUARANTY.  (Ch.  8 

come  jointly  liable  for  breach  of  the  bond  which  occurred  before 
the  dicharge,  and  the  right  of  contribution  exists  as  between  co- 
sureties.66 And  two  persons  are  co-sureties  when  one  is  on  a 
general  official  bond  and  the  other  on  a  special  bond  required 
under  the  same  obligation  with  relation  to  a  special  debt.67 

§  204.  The  Obligation  Must  Be  the  Same. — If  the  obli- 
gation of  the  different  sureties  are  for  wholly  different  thing3, 
or  have  no  relation  to  each  other,  though  they  arise  out  of  the 
same  original  indebtedness,  then  there  is  no  right  of  contribu- 
tion among  the  several  sureties.68  So  where  one  of  the  sureties 
and  the  principal  execute  a  new  note,  which  takes  the  place  of 
the  old  note,  the  surety  upon  such  new  note  will  not  be  entitled 
to  contribution  from  the  other  sureties  upon  the  old  note  for 
which  the  new  note  was  executed.69 

§  205.  Co-sureties  Limiting  Their  Liability  in  Differ- 
ent Amounts. — Co-sureties  may  limit  their  liability.  So 
where  two  or  more  persons  bind  themselves  as  sureties  for  a 
common  principal  and  in  different  amounts,  in  case  of  contribu- 
tion, they  are  liable  in  proportion  to  the  limitation  of  their 
respective  liability,  and  not  in  equal  amounts.  Where  the  claim 
of  the  creditor  is  to  the  full  amount,  each  must  pay  up  to  the 
fixed  limit  of  his  liability ;  but  where  the  claim  is  less  than  such 
full  amount,  and  is  discharged  by  one,  the  claims  must  be  pro- 
portionately borne  by  the  others,  even  where  the  claim  does  not 
exceed  the  fixed  limit  of  the  liability  of  the  surety  who  has 
paid.70  Where  the  same  default  of  the  principal  renders  all  the 
co-sureties  responsible,  they  must  contribute  equally  if  each  is 

"Scofield  v.  Churchill,  72  N.  Y.  565;  Choate  v.  Arrington,  116  Mass.  552; 
Pinkstaff  v.  State,  59  111.  148;  State  v.  Berring,  74  Mo.  87;  Commonwealth 
v.  Cox,  36  Pa.  St.  442. 

"Elbert  v.  Jacoby,  8  Bush,  547;  Cherry  v.  Wilson,  78  N.  Car.  164. 

"Kellar  v.  Williams,  10  Bush,  216;  Rosenbaum  v.  Goodman,  76  Va.  121; 
Salyers  v.  Ross,  15  Ind.  130. 

"Bell  v.  Boyd,  76  Tex.  133;  Tittle  v.  Schmitt,  94  Ga.  405.  See,  also, 
Chapman  v.  Garber,  46  Neb.  16. 

"Elleflmere  Brewing  Co.  v.  Cooper    (1896),  1  Q.  B.  75. 


§    206)  EIGHTS    OF    CO-SURETIES.  153 

a  surety  to  an  equal  amount;  but  if  not  equal,  then  proportion- 
ately to  the  amount  for  which  each  is  a  surety.71 

Sureties  for  the  same  principal  and  for  the  same  engagement, 
even  although  bound  by  different  instruments  and  for  different 
amounts,  have  a  common  interest  and  a  common  burden ;  so  if 
one  surety  who  is  directly  liable  to  the  creditor  pays  such  cred- 
itor, he  can  claim  contribution  from  his  co-sureties,  whose  obli- 
gations to  the  creditor  he  has  discharged.  Where  sureties  are 
bound  jointly  and  severally,  but  limit  their  liability,  the  liabil- 
ity can  only  be  enforced  against  each  surety  to  the  limit  of  the 
liability  fixed  in  the  instrument;  and  when  one  has  paid  to 
the  limit  of  his  liability,  there  can  be  no  contribution  exacted 
from  him.  And  if  the  circumstances  are  such  that  he  discharges 
the  obligation  for  less  than  his  individual  limit,  yet  he  can  com- 
pel contribution  from  the  other  co-sureties.72 

§  206.  Accommodation  Indorsees. — Some  courts  hold  that, 
in  the  absence  of  agreement,  the  legal  liability  of  the  parties 
to  a  promissory  note  is  to  be  determined  by  the  relation  they 
bear  to  such  note ;  and  the  fact  that  one  of  them  is  the  principal 
debtor,  and  the  others  sign  for  his  accommodation,  will  not 
change  this  note  or  make  the  whole  number  signing  co-sureties 
as  to  each  other.73  Thus,  where  one  of  two  accommodation 
signers  executes  a  note  as  joint  maker  with  the  principal  debtor, 
and  the  other  as  payee  and  indorser,  and  there  is  no  special 
agreement  between  them,  they  are  not  co-sureties.74  However, 
this  is  not  the  law  in  other  jurisdictions,  and  accommodation 
indorsers  are  considered  as  co-sureties  and  liable  to  contribution. 
Thus,  where  successive  indorsers,  by  indorsing  as  an  accommo- 

T1  Pendlebury  v.  Walker,  4  Y.  &  C.  (Exeh.)  424;  Steel  v.  Dixon,  17  Ch.  D. 
825;  In  re  Arcedeckne,  24  Ch.  D.  709. 

"Ellesmere  Brewing  Co    v.  Cooper   (1896),  1  Q.  B.  75. 

"McCarty  v.  Roots,  21  How.  432;  McDonald  v.  Magruder,  3  Pet.  476; 
Armstrong  v,  Harsham,  61  Ind.  52.  McGurk  v.  Huggett,  50  Mich.  187; 
Hogue  v.  Davis,  8  Gratt.  4;  Sherrod  v.  Rhodes,  5  Ala.  683;  Kersham  v. 
Conklin,  40  Conn.  81;  Aiken  v.  Barkley,  2  Spear   (S.  Car.),  747. 

"Hillegas  v.  Stephenson,  75  Mo.  118;  Wilson  v.  Stanton,  6  Blackf.  (Ind.) 
507. 


154:  SURETYSHIP  AND  GUARANTY.  (Ch.  8 

dation  of  maker  of  the  note,  though  at  different  times  and  with- 
out mutual  agreement,  they  are  held  as  co-sureties,  and  in  equity 
will  be  liable  to  contribution.75 

§  207.  Sueety  in  Legal  Proceedings. — Where  a  party  be- 
comes a  surety  in  the  course  of  legal  proceedings  to  collect  a  debt 
from  the  principal  debtor,  he  is  not  a  co-surety  with  the  original 
surety  for  the  debt  when  contracted,  and  is  not  liable  to  contri- 
bution to  the  original  surety;  neither  is  he  liable  to  the  other.76 
If  the  original  surety  pays  the  debt  he  will  be  substituted  in 
the  place  of  the  creditor  or  obligee  to  the  exclusion  of  the  surety 
in  the  legal  proceedings.77 

§  208.  Indemnity  to  One  Surety. — The  indemnity  to  one 
surety  inures  to  the  benefit  of  the  others.78  The  right  of  the 
co-surety  to  share  in  the  indemnity  given  to  another  surety, 
results  not  from  contract  or  intention  of  the  principal  and 
surety,  but  from  the  principles  of  equity  arising  out  of  the  rela- 
tion which  the  sureties  bear  to  each  other.79  If  the  indemnity 
fails  without  any  neglect  of  the  party  indemnified,  then  there  is 
no  right  of  contribution.80  If  the  surety  has  released  or  wasted 
the  security  given  him  by  the  principal,  he  loses  his  right  to 
contribution  to  the  extent  of  his  indemnity,81  and  pro  rata  if  he 

"Stovall  v.  Bank,  78  Va.  188;  Dillenback  v.  Dygert,  97  N.  Y.  303; 
Daniel  v.  McRae,  2  Hawks  (N.  Car.),  590;  Freeman  v.  Cherry,  46  Ga.  14; 
Atwater  v.  Farthing,  118  N.  Car.  388.     See  see.  14. 

T8  Chaffin  v.  Campbell,  4  Sneed  (Tenn. ),  184;  Rosenbaum  v.  Goodman.  78 
Va.  121;  Dunlop  v.  Foster,  7  Ala.  734;  Smith  v.  Berry,  3  Ohio,  33;  Pott  v. 
Nathans,  1  Watts  &  R.  155;  John  v.  Jones,  16  Ala.  454;  Preston  v.  Preston, 
4  Gratt.  88 ;  Langford  v.  Perrin,  5  Leigh,  552. 

"Pott  v.  Nathans,  1  Watts  &  S.  155;  Schmitzel's  Appeal,  49  Pa.  St.  23; 
Wolf  v.  Stover,  107  Pa.  St.  206. 

"Steele  v.  Mealing,  24  Ala.  285;  Farmers'  Nat.  Bank  v.  Snodgrass,  2D 
Oreg.  395;  Berridge  v.  Berridge,  44  Ch.  Div.  168;  Silvey  v.  Dowell,  53  111. 
260;  Kalso  v.  Kelso,  16  Ind.  App.  615;  Rembrant  v.  Johnson,  62  Iowa,  155; 
Moorman  v.  Hudson,  125  Ind.  504. 

"  Scribner  v.  Adams,  73  Me.  541. 

"Cbnley  v.   Buck,  100  Ga.   187. 

"  Prink  v.  IVabody,  26  111.  App.  300;  Sanders  v.  Weelburg,  107  Ind.  272; 
Chilton  v.  (  hupman,  13  Mo.  470. 


§    209,  210)  EIGHTS    OF    CO-SURETIES.  155 

has  wasted  a  part  of  the  indemnity.82  And  the  surety  indem- 
nified must  account  to  those  who  pay  the  debt.83  If  there  are 
several  demands,  with  different  co-sureties,  indemnity  given  to 
one  who  is  liable  on  all  should  be  proportioned  among  them.84 
If  the  co-surety  applies  an  indemnity  bond  to  the  payment  of  the 
debt,  he  acquires  no  right  thereby  to  a  contribution  against  a 
co-surety.85  It  does  not  prevent  contribution  because  one  surety 
takes  property  in  trust  from  the  principal,  to  be  applied  on  the 
debt.86 

§  209.  Liability  to  Contribute  on  Successive  Bonds. — 
The  giving  of  subsequent  bonds  with  the  same  penalties  for  the 
performance  of  the  obligor's  duties,  makes  them  cumulative 
securities,  and  the  liability  of  the  sureties  thereon  for  contribu- 
tion is  as  if  all  had  signed  the  same  bond  ;87  that  is,  the  obliga- 
tion of  the  sureties,  as  between  themselves,  is  as  if  they  were  all 
bound  by  the  same  instrument.88  But  such  sureties  will  not 
be  liable  to  contribute,  with  a  surety  on  another  bond,  to  the 
payment  of  an  amount  charged  against  an  executor,  or  obligor, 
for  interest  on  money  of  the  estate  loaned  to  the  latter  surety.89 

§  210.  Admissibility  of  Parol  Evidence  to  Show  That 
Parties  on  a  Promissory  Note  are  Co-sureties. — The  great 
weight  of  authority  is  that  parol  evidence  is  admissible  to  show 
the  true  terms  subsisting  between  the  makers  of  a  promissory 

82  Ramsey  v.  Lewis,  30  Barb.  203 ;  Goodloe  v.  Clay,  6  B.  Mon.  230. 

83  Whiteman  v.  Harriraan,  85  Ind.  49 ;  Hoover  v.  Mowser,  84  Iowa,  43. 
"Mueller  v.  Barge,  54  Minn.  314;  Barge  v.  Van  Der  Horck,  57  Minn. 

497;   Brown  v.  Ray,  18  N.  H.  102. 

86  Gibson  v.  Shehan,  5  App.  Dist.  Col.  391. 

89  Roeder  v.  Niedermeier,  112  Mich.  608. 

"Thompson  v.  Dekum,  32  Oreg.  506. 

MDeering  v.  Winchelsea,  2  Bos.  &  P.  270;  1  Cox,  310;  Odom  v.  Owen,  2 
Baxt.  446;  Pickens  v.  Miller,  83  N.  Car.  543;  Cobb  v.  Haynes,  8  B.  Mon. 
137;  Armitage  v.  Pulmer,  37  N.  Y.  494;  Loring  v.  Bacon,  3  Cush.  465; 
Brooks  v.  Whitman,  142  Mass.  399;  Stevens  v.  Tucker,  87  Ind.  109;  Bosley 
v.  Tayler,  5  Dana,  157. 

"Crisfield  v.  Murdock,  127  N.  Y.  315:  Eshleman  v.  Bolenires,  144  Pa. 
St.  269;  Thompson  v.  Dekum,  32  Oreg.  506.     See  sec.  9,  168. 


156  SURETYSHIP    AND    GUARANTY.  (Ch.  8 

note  when  contribution  is  sought;  and  this  is  so  whether  their 
subscription  appears  to  be  that  of  principals  or  sureties.  The 
reason  upon  which  the  rule  is  founded  is  that  the  note  is  the 
measure  of  the  contract  between  the  makers  and  the  payee,  and 
not  between  the  makers  themselves ;  and  that  their  correlative 
and  interdependent  relations  is  a  matter  wholly  collateral  to 
the  primary  undertaking,  so  that  parol  evidence  establishing 
such  relation  does  not  vary  the  terms  of  the  instrument,  or  writ- 
ten contract.90  So  parol  evidence  is  competent  to  show  the 
relations  existing  between  makers  and  guarantors  or  indorsers, 
who  are  bound  by  different,  distinct  and  independent  con- 
tracts. Such  evidence  in  this  class  of  cases  is  to  prove  a  separ- 
ate contract  which  was  made  by  parol,  and  is  of  as  high  a  char- 
acter as  the  law  requires  in  such  cases.91  And  so  the  relations 
between  the  parties  can  be  shown  by  parol  to  be  that  of  co-sure- 
ties, even  if  the  plaintiffs  had  been  promisors  and  the  defend- 
ant's estate  as  indorser.92  And  so  a  contract  of  indorsement  is 
one  implied  by  the  law  from  the  blank  indorsement,  and  can  be 
qualified  by  express  proof  of  a  contract  between  the  parties,  and 
is  not  subject  to  the  rule  that  excludes  proof  to  alter  or  vary  the 
terms  of  an  express  agreement.93  As  touching  irregular  in- 
dorsements, as  between  the  maker  or  indorsee  and  indorser,  or  a 
surety  and  indorser,  or  as  between  successive  indorsers,  the  pre- 
sumption which  the  face  of  the  transaction  imports  may,  as  be- 
tween accommodation  parties  to  the  paper,  be  rebutted,  and  their 
true  relations  shown  to  be  that  of  co-sureties.94 

In  the  absence  of  agreement  to  the  contrary,  the  parties  to 

80  Williams  v.  Glenn,  92  N.  Car.  253;  Stovall  v.  Adair  (Okl.),  60  Pac. 
Rep.  282;  Mansfield  v.  Edwards,  136  Mass.  15;  Water  Power  Co.  v.  Brown, 
23  Kan.  676;  Bank  v.  Layne,  101  Tenn.  45;  Barry  v.  Rawson,  12  N.  Y.  462; 
Montgomery  v.  Page,  29  Oreg.  320. 

81  Phillips  v.  Preston,  5  How.  277;  Weston  v.  Chamberlin,  7  Cush.  404. 
n  Clapp  v.  Rice,  13  Gray,  406. 

"  Ross  v.  Espy,  66  Pa.  St.  481 ;  Dunn  v.  Wade.  23  Mo.  207 ;  McCune  v. 
Belt,  45  Mo.  174.  See,  also,  Sturtevant  v.  Randall,  53  Me.  149;  Denton  v. 
Lytic,  4  Bush,  507;  Edelon  v.  White,  6  Bush,  408;  Narre  v.  Chittenden,  56 
Ind.  4(J2  :  Easterly  v.  Barber,  66  N.  Y.  433.  Compare  Johnson  v.  Ramsey,  43 
N.  J.  I,.  280. 

M  Wade  v.  Creighton,  25  Grog.  455;  McNeilly  v.  Patchin,  23  Mo.  43. 


§    211)  RIGHTS    OF    CO-SUEETIES.  157 

a  promissory  note  are  liable  on  it  according  to  the  legal  effect  of 
the  indorsements ;  that  is,  the  maker  is  liable  to  the  payee  and 
the  indorsers,  and  (he  payee  to  the  indorsers  which  indorse  to 
the  subsequent  indorsee.  It  may  be  proved  by  parol  evidence 
that  the  relations  of  the  parties  to  each  other  is  different  from 
this  rule ;  that  is,  that  the  payee  or  indorsee  was  the  real  princi- 
pal, or  that  all  the  parties  were  joint  principals,  or  some  of 
them  joint  sureties.95  There  must  have  been  at  the  time  of 
entering  into  such  relations  a  contract  between  the  accommoda- 
tion parties,  either  expressed  or  implied,  to  become  co-sureties 
and  to  'share  in  the  loss  which  might  result  from  the  obligations 
assumed,  as  without  it  the  law  fixes  their  engagement,  and  the 
mere  fact  that  they  have  "become  parties  for  accommodation  can- 
not change  the  result.96  So  parol  evidence  is  admissible  to  show 
that  one  who,  before'  delivery,  for  the  accommodation  of  the 
maker  of  a  promissory  note,  guaranteed  the  payment  thereof  by 
indorsement — is  by  a  separate  verbal  agreement  a  co-surety  with 
one  who  signed  upon  the  face  thereof  as  joint  and  several  maker, 
and  who  was  really  a  co-surety  ;97  and  so  one  may  show  by  parol 
evidence  that  he  is  a  surety,  and  not  a  co-surety  for  a  party.98 

§  211.  Statute  of  Limitations. — The  statute  of  limita- 
tions does  not  begin  to  run  against  a  surety  suing  a  co-surety  for 
contribution  until  the  liability  of  the  surety  is  ascertained; 
that  is,  until  the  claim  of  the  principal  creditor  has  been  estab- 
lished against  him  by  payment  or  otherwise ;  although  at  the  time 
of  the  action  for  contribution,  the  statute  may  have  run,  as  be- 
tween the  principal  creditor  and  the  co-surety.99 

M  Sweet  v.  McAlister,  4  Allen,  354;  Clapp  v.  Rice,  13  Gray,  406. 

96  McDonald  v.  Magruder,  3  Pet.  476;  McCarty  v.  Roots,  21  How.  437; 
McCune  v.  Belt,  45  Mo.  178;  Stillwell  v.  How,  46  Mo.  589;  Kirschman  v. 
Conklin,  40  Conn.  81;  Hogue  v.  Davis,  8  Gratt.  4. 

"Montgomery  v.  Page,  29  Oreg.  320. 

M  Leeper  v.  Paschal,  70  Mo.  App.  37.     See  sec.  58. 

99  Wolmershausen  v.  Gullick  (1893),  2  Ch.  514;  Martin  v.  FrantZ,  12? 
Pa.  St.  389;  Buell  v.  Burlingame,  11  Colo.  164;  May  v.  Vann,  15  Fla.  553; 
Sexton  v.  Sexton,  35  Ind.  88;  Hooper  v.  Hooper,  81  Md.  155,  174;  Davies  v. 
Humphreys,  6  Mees.  &  W.  153;  Ex  parte  Snowden,  17  Ch.  Div.  44:  Durbin 
v.  Kuney,  19  Oreg.  75;  Leak  v.  Covington,  99  N.  Car.  559. 


158  SURETYSHIP  AND  GUARANTY.  (Ch.  8 

This  right  of  contribution  does  not  arise  from  contract  on 
the  original  instrument  of  joint  obligation,  but  from  the  equity 
of  one  who  has  paid  more  than  his  just  share  of  a  joint  debt.100 

On  payment  by  a  surety  in  excess  of  his  proportion  of  the 
joint  debt,  he  has  a  right  of  action  for  contribution,  and  the 
statute  of  limitation  begins  to  run  from  the  date  of  such  pay- 
ment ;  if  payments  be  by  installments,  then  from  the  date  of  the 
several  payments.101 

§  212.  Bankruptcy  of  Co-surety. — In  England  and  in 
several  of  the  States,  a  discharge  of  a  surety  in  bankruptcy  does 
not  release  him  from  liability  to  contribution  to  his  co-surety.102 
While  a  discharge  in  bankruptcy  is  a  bar  to  liabiltiy  of  a  surety 
for  his  principal's  debt,  it  is  not  to  the  equitable  liability  be- 
tween co-sureties  in  an  action  for  contribution  when  the  payment 
was  made  subsequent  to  the  discharge.103  But  in  other  States 
the  discharge  of  a  surety  in  bankruptcy  discharges  him  as  to  his 
liability  as  to  contribution  to  a  co-surety.104 

100  Camp  v.  Bostwick,  20  Ohio  St.  337. 

M1Bushnell  v.  Bushnell,  77  Wis.  435;  Bullock  v.  Campbell,  ,9  Gill  (Md.), 
182;  Wilson  v.  Crawford,  47  Iowa,  469;  Preston  v.  Gould,  64  Iowa,  44; 
McClatchie  v.  Durham,  44  Mich.  435;  Williams  v.  Rees,  15  Ohio,  572;  Wood 
v.  Leland,  1  Met.  387. 

102  Byers  v.  Alcorn,  6  111.  App.  39. 

103Liddell  v.  Wiswell,  59  Vt.  365;  Goss  v.  Gibson,  8  Humph.  197;  Kerr  v. 
Clark,  11  Humph.  77;  Clements  v.  Langley,  2  New  &  M.  269. 

104  Tobias  v.  Rogers,  13  N.  Y.  59 ;  Hibernian  Bank  v.  Lacombe,  84  N.  Y. 
otn;  Miller  v.  Gillespie,  59  Mo.  220;  Hilleburton  v.  Carter,  55  Mo.  435; 
Hays  v.  Ford,  55  iud.  52. 


§    213,214)  SURETIES    ON    BONDS.  159 


CHAPTER  IX. 
sureties  on  bonds  in  legal  proceedings. 

§  213.  Discharge  of  Surety  on  Dissolution  of  Attach- 
ment.— An  attachment  is  a  mere  creation  of  the  statute,  and  its 
existence  and  operation  in  any  case  continues  no  longer  than  the 
statute  provides  it  may.105  Attachment  bonds  which  substan- 
tially comply  with  the  requirements  of  the  statute  which  author- 
ize them,  will  be  upheld  as  valid,  unless  any  other  form  than 
that  prescribed  is  actually  prohibited.  A  mere  informality  will 
not  vitiate  them,  and  will  be  upheld  as  a  common  law  obliga- 
tion.106 

It  is  the  general  rule  that  any  voluntary  obligation  or  agree- 
ment, entered  into  for  a  valuable  consideration  by  parties  cap- 
able of  contracting,  is  valid  at  common  law,  unless  it  is  repug- 
nant to  the  statute  or  contravenes  the  policy  of  the  law.107 

§  214.  Exoneration  of  Sureties  on  Attachment  Bonds. 
— Where  an  attachment  has  been  made  upon  property  which 
has  been  returned  to  the  debtor  by  his  giving  a  delivery  bond,  the 
delivery  bond  cannot  be  satisfied  only  by  actual  delivery  of  the 
property.  An  offer  to  deliver  can  only  be  executed  by  bringing 
forward  the  property,  identifying  it  and  tendering  it  to  the 
proper  officer.108  Telling  the  officer  where  the  property  is  and 
to  go  and  take  it  is  not  sufficient,  and  the  sureties  will  not  be  re- 
leased.109    But  an  officer  may  waive  delivery.110 

105  Hamilton  v.  Bell,   123  Cal    93. 

""Purcell  v.  Steele.  12  111.  93;  Allerton  v.  Eldridge,  56  Iowa,  709;  En- 
dress  v   Ent,  18  Kan.  236;  Wight  v.  Keyes,  103  Pa.  St.  567. 

107  United  States  v  Linn,  15  Pet.  290;  Pritchett  v.  People,  1  Gil.  (111.) 
525;  Mosher  v.  Murphy,  121  Mass.  276. 

108Pogne  v.  Joyner,   7   Ark.  402. 

1S»   Chapline  v.  Robertson,  44  Ark.  202. 

110  Hansford  v.  Perrin,  6  B.  Mon.  595. 


160  SUKETYSHIP  AND  GUARANTY.  (Ch.  9 

Where  suit  is  brought  against  two  principals,  the  discontinu- 
ance as  to  one  will  not  have  the  effect  to  discharge  a  bond  which 
the  obligors  have  jointly  given  to  dissolve  an  attachment.  Xor 
is  the  surety  released.  If  he  had  desired  to  escape  liability  for 
a  judgment  against  only  one  of  the  obligors,  he  should  have 
given  a  bond  limited  to  a  judgment  against  all.111 

§  215.  Judgment  of  Non-suit. — An  attachment  is  dis- 
solved upon  the  recovery  of  a  judgment  of  non-suit  entered  in 
favor  of  the  obligors,  whose  property  has  been  attached,  and  the 
sureties  on  the  bond  given  for  the  release  of  the  attached  prop- 
erty for  a  redelivery  thereof  to  the  officer,  are  thereupon  dis- 
charged, and  their  liability  is  not  revived  or  affected  by  a  re- 
versal of  the  judgment  of  non-suit  subsequently  rendered  and 
judgment  for  the  obligee.112  Where  an  attachment  is  dissolved, 
all  the  proceedings  are  quashed  and  become  of  no  effect,  and  the 
delivery  bond  falls,  with  the  writ  of  which  it  is  the  basis.113 

§  216.  Attachment  Lien  Being  Discharged — Insolv- 
ency of  Debtor. — When  a  redelivery  bond  is  given  and  the 
officer  restores  the  property  to  the  debtor,  the  lien  is  released. 
So  if  there  is  no  attachment  in  force,  the  lien  being  discharged, 
and  the  debtor  goes  into  bankruptcy  or  insolvency,  this  does  not 
release  the  sureties  on  the  delivery  bond ;  their  liability  is  not 
affected  by  the  subsequent  insolvency  of  their  principal;114  and 
the  sureties'  liability  is  not  changed  by  a  subsequent  discharge 
of  the  principal  debtor  in  bankruptcy.115 

§  217.  Increase  of  Claim  by  Amendment  of  Declara- 
tion.— In  some  of  the  States  peculiar  systems  of  jurisprudence 
with  respect  to  suits  in  attachment,  have  grown  up.  and  every- 

1,1  Poole  v.  Dyer.  123  Mas?.  363:  Dalton  v.  Barnard.  150  Mas;.  473. 
Compare  Andre  v.  Fitzhucrh.  18  Mich.  93. 

m  Hamilton  v.  Bell.  123  Cal.  03. 

MGaae  v.  Williams,  46  Ind.  263;   Fernan  v.  Butcher.  113  Pa.  St.  292. 

"McComb  v.  Allen.  82  X.  V.  114:  Fa=ton  v.  Ormsby.  18  R.  I.  309; 
Rosenthal  v.  Perkins  123  Cal.  210. 

m,Bernheimer  v.  Charak,  170  Mass.  179:  Cass  v.  Smith,  6  Gray,  112. 


§    218)  SURETIES    ON    BONDS.  161 

thing  in  that  connection  is  held  to  be  stricti  juris;  in  other 
States,  a  more  liberal  rule  prevails.  So  where  the  liberal  rule 
is  followed,  and  no  local  statute  or  rule  of  local  law  is  involved, 
the  power  to  amend  is  the  same  in  attachment  suits  as  in  other 
actions.116 

Thus,  introducing  additional  items  of  indebtedness  is  con- 
clusive as  to  the  identity  of  the  action,  and  the  surety  must  be 
considered  to  have  agreed  to  be  liable  for  any  judgment  which 
might  be  rendered  in  the  attachment  proceedings.117 

But  where  the  rule  of  attachment  is  held  to  be  stricti  juris, 
any  amendment  introducing  new  matter  will  discharge  the 
surety.  Whenever  the  amendment  lets  in  some  new  demand  or 
new  cause  of  action  the  sureties  are  discharged.118  But  a  mere 
formal  defect  will  not  discharge  the  surety,  if  corrected,119  nor 
will  an  added  count  for  the  same  cause  of  action.120  And  where 
the  liability  is  not  increased  above  the  penalty  in  the  bond,  by 
increasing  the  ad  damnum,  the  surety  is  not  released.121 

§  218.  Bringing  in  New  Parties  as  Defendants. — The 
obligee  has  no  right  to  bring  in  new  parties  as  defendants  and 
discontinue  as  to  others  already  parties  to  the  suit.  Thus,  if 
the  plaintiff  in  a  suit  upon  an  attachment  bond,  discontinues  as 
to  one  defendant  and  brings  in  a  new  party  as  defendant,  with- 
out notice  to  the  surety,  the  surety  is  discharged,  although  the 
defendant  as  to  whom  the  action  was  discontinued  was  not  a 
party  to  the  bond.122 

§  219.  Trespass  by  Officer. — A  surety  on  a  delivery  bond 

116  Tilton  v.  Cofield,  93  U.  S.  163;  Johnson  v.  Huntington,  13  Conn.  47; 
McKnight  v.  Strong,  25  Ark.  212;  Wadsworth  v.  Cheney,  13  Iowa,  576; 
Scott  v.  Macy,  3  Ala.  250 ;  Wood  v.  Squires,  28  Mo.  397 ;  Mango  v.  Edwards, 
1  E.  D.  Smith  (N.  Y.),  414. 

117  Chapman  v.  Stucky,  22  111.  App.  31. 

118  Freeman  v.  Creech,  112  Mass.  180;  Prince  v.  Clark,  1-27  Mass.  599; 
Wilks  v.  Adcock,  8  Term  R.  27. 

119  Kellogg  v.  Kimble,  142  Mass.  124. 
110  Doran  v.  Cohen,  147  Mass.  342. 

121  Martin  v.  Moor,  2  Strange,  922 ;  Townsend  Nat.  Bank  v.  Jones,  151 
Mass.  454. 

™  Richards  v.  Storer,  114  Mass.  101;  Tucker  v.  White,  5  Allen,  323. 
11 


162  SURETYSHIP  AND  GUARANTY.  (Ch.  9 

is  not  liable  for  a  trespass  committed  by  an  officer  in  attaching 
property.  Thus,  a  surety  in  an  attachment  bond,  when  the 
attachment  has  been  sued  out  for  a  good  cause,  is  not  responsible 
for  the  failure  of  the  officer  to  discharge  his  duty  and  for  a  tres- 
pass committed  by  him.123  Nor  is  a  surety  liable,  as  held  by 
some  courts,  for  a  trespass  of  an  officer  for  seizing  property  on  a 
void  bond.124 

§  220.  Delivery  Bond — Rights  of  Surety  as  to  Prop- 
erty.— As  between  the  surety  and  the  owner  of  the  property 
after  redelivery,  the  surety  has  the  right  to  see  that  the  property 
shall  not  be  so  disposed  of,  that  delivery  cannot  be  made  accord- 
ing to  the  terms  of  the  bond.125  Because  the  surety  is  not 
bound  to  wait  upon  the  creditor,  nor  is  his  right  in  this  respect 
contingent,  upon  his  demand,  upon  the  creditor  to  ascertain  his 
lien,  and  the  latter's  refusal  to  do  so.  Neither  has  the  legal 
title,  but  both  a  general  lien,  and  therefore  their  only  recourse 
is  in  a  court  of  equity,  of  which  either  can  take  advantage.126 

But  as  to  third  parties,  the  release  of  the  attached  property 
having  been  procured  by  giving  a  delivery  bond,  does  not  by  rea- 
son of  their  suretyship  entitle  the  sureties  to  the  possession  of 
the  property.127 

In  some  States,  however,  a  delivery  bond  is  given  in  the 
alternative,  conditioned  for  the  delivery  of  the  chattels  or  for 
the  payment  of  their  value,  in  case  the  attaching  creditor  gains 
his  suit.  Then  the  alternative  condition  does  not  discharge  the 
lien  on  the  property  from  the  attachment  lien ;  but  the  custody 
of  the  owner  is  substituted  for  that  of  the  officer  only,128  the  lien 
still  subsisting. 

123  Offterdinger  v.  Ford,  92  Va.  636. 

124  McDonald  v.  Felt,  49  Cal.  354;  Dawson  v.  Baum,  3  Wash.  T.  464. 
Compare  Herring  v.  Hoppock,  15  N.  Y.  409;  Lovejoy  v.  Murry,  3  Wall.  1; 
Wetzell  v.  Waters,  18  Mo.  396;  Ford  v.  Williams,  13  N.  Y.  584. 

,M  .lames  v.  Kennedy,  10  Heisk.  607. 
""  Dechard  v.  Edwards,  2  Sneed,  93. 

m Stevenson  v.  Palmer,  14  Colo.  505;  Longhlin  v.  Ferguson,  0  Dana,  111. 
"MJass   v.   Williams,   46   Ind.   253;    Gray   v.   Perkins,    12   Smedes  &   M. 
(Miss.)   022. 


§    221-224)  SURETIES    ON    BONDS.  163 

§  221.  Void  Bond. — If  there  is  no  authority  in  law  for  the 
attachment,  there  can  be  none  for  taking  the  bond.  If  the  at- 
tachment itself  is  illegal  and  therefore  void,  so  also  must  be  a 
bond  which  takes  its  place.129  An  action  cannot  be  maintained 
on  a  bond  given  to  obtain  the  liberation  of  property  illegally 
seized  by  an  officer,  and  the  sureties  on  the  bond  therefore  are 
not  liable.130 

§  222.  Damages. — The  obligation  of  a  surety  in  an  under- 
taking in  attachment  is  to  pay  the  obligee  thereof  all  damages 
sustained  by  reason  of  the  attachment,  if  the  order  be  wrong- 
fully obtained.131  But  if  the  property  attached  is  not  the  de- 
fendant's, he  can  recover  no  damages,132  and  of  course  the  surety 
on  the  bond  is  not  liable  to  him.  But  if  the  defendant  has  been 
injured,  then  he  has  his  remedy  in  an  action  of  tort  against  the 
officer,  and  not  against  the  sureties  on  the  attachment  bond.133 

§  223.  The  Surety  is  Concluded  by  the  Judgment 
Against  His  Principal. — In  the  absence  of  fraud  or  collusion, 
a  judgment  against  the  principal  on  the  bond  binds  the  sureties 
and  is  determinative  for  all  purposes  as  to  the  value  of  the 
property  taken  by  a  delivery  bond,  and  conclusive  as  to  the 
sureties.134  As  to  the  sureties,  the  matter  is  res  ad  judicata, 
and  cannot  be  set  aside,  except  for  fraud,  accident  or  mistake.135 

§  224.  Appeal  Bond — Discharge  of  Sureties. — The  lia- 
bility of  sureties  being  contingent,  anything  legally  satisfying 

129  Pacific  Nat.  Bank  v.  Mixter,  124  U.  S.  721. 

130Homan  v.  Brinckerhoof,  1  Demo,  184;  Cadwell  v.  Colgate,  7  Barb.  253. 

131  Hopewell  v.  McGrew,  50  Neb.  789. 

132Tebo  v.  Betancourt,  73  Miss.  868. 

1:3  Pinson  v.  Kirsh,  46  Tex.  29. 

134  CharlelTv!'  Hoskins,  T4  Iowa,  471;  Jaffray  v.  Smitb,  106  Ala.  112  j 
Triest  v.  Enslen,  106  Ala.   180. 

135  Dickerson  v.  Heman,  9  Daly  (N.  Y.),  298;  Fusz  v.  Trager,  39  La.  Ann. 
292;  Bergen  v.  Williams,  4  McLean,  125. 


164  SUEETYSHIP    AXD    GUAEAXTY.  (Oil.  9 

the  judgment  appealed  from  as  against  the  principal  will  dis- 
charge the  sureties;  whatever  discharges  the  judgment  dis- 
charges also  the  liability  of  the  obligors  upon  the  bond.136 

But  a  levy  of  execution  upon  real  property  of  sufficient  value 
to  satisfy  the  judgment  does  not,  like  the  levy  of  an  execution  on 
personal  property,  operate,  while  the  levy  is  undisposed  of,  as 
such  a  satisfaction  of  the  judgment  as  will  bar  an  attempt  to 
enforce  its  collection  in  any  other  manner.137 

A  surety  is  released  on  appeal  bond  when  the  principal  debtor 
is  discharged  in  bankruptcy,  and  no  final  judgment  is  rendered 
against  the  principal;138  and  the  surety  is  discharged  on  reversal 
of  the  judgment,139  provided  the  reversal  is  not  set  aside  on 
further  appeal;  if  it  is  set  aside,  then  the  surety's  liability  is 
revived,  and  he  is  responsible.140  When  the  judgment  on  ap- 
peal is  affirmed,  the  liability  is  fixed  by  the  legal  import  of  the 
conditions  in  the  bond.141  And  generally  the  liability  of  the 
sureties  is  measured  by  that  of  the  principal.142  And  the  sure- 
ties may  avail  themselves  of  any  defense  available  to  their  prin- 
cipal.143 The  extent  of  recovery  generally  is  the  judgment  and 
interest,  with  costs,  unless  the  bond  provides  otherwise.144  But 
the  sureties  are  not  liable  for  attorney  fees ;  145  nor  for  rents  and 
profits  pending  appeal  affecting  real  estate,  unless  the  statute  so 
provides.146 

A  sufficient  tender  of  performance  of  the  judgment  by  either 

136  Cook  v.  King,  7  111.  App.  549:  Cass  v.  Adams,  3  Ohio.  223;  Ellis  v. 
Fisher,  10  La.  Ann.  479:  Xoble  v.  Oil  Co.,  69  Pa.  St.  407:  Stelle  v.  Lovejoy, 
125  111.  352;  Green  v.  Raftes,  G7  Ind.  49. 

mGold  v.  Johnson,  59  111.  63;  Herrick  v.  Swartwout,  72  111.  340. 

1M  Martin  v.  Kilbourn,  12  Eeisk.  331:  Odell  v.  Woothen,  38  Ga.  224. 

"•  Rothlinger  v.  Wonderly,  66  111.  390. 

"°Robin«on  v.  Plimpton.  25  N.  Y.  484. 

luStull  v.  Hance,  62  111.  52;  Graeter  v.  DeWolf,  112  Ind.  4:  Noyes  r. 
Granger,  51   Iowa.  227. 

]t-  Sharon  v.  Sharon,  84  Cal.  433 ;  Parnell  v.  Hancock,  48  Cal.  452. 

m  Sharon  v.  Sharon,  84  Cal.  433. 

m  Stelle  v.  Lovejoy,  125  111.  352. 

114  Noll  v.  Smith.  68  Ind.  168. 

"•Stultz  v.  Zahn,  117  Ind.  277;  Opp   v.  Ward,  125  Ind.  241. 


§  225, 226)  sureties  on  bounds.  165 

the  principal  or  sureties  on  the  appeal  bond  discharges  the  sure- 
ties, whether  accepted  or  not.147 

§  225.  Appeal  to  a  Special  Court. — A  surety  is  discharged 
on  the  appeal  bond,  if  the  judgment  is  affirmed  by  a  court  other 
than  that  mentioned  in  the  bond.148  Thus,  where  the  bond 
specifies  a  particular  court,  and  when  it  comes  before  that  court 
a  change  of  venue  is  taken,  the  sureties  are  discharged.149  But 
if  the  bond  is  conditioned  generally  for  the  payment  of  the  judg- 
ment if  affirmed  on  appeal,  then  they  are  liable  to  whatever  court 
the  appeal  is  taken,  even  if  there  are  successive  appeals.150 

§  226.  Change  of  Issue  and  Parties. — Sureties  on  appeal 
are  discharged  by  any  material  change  in  the  issue.151  And  so 
if  the  parties  are  changed  the  sureties  are  discharged,152  as 
where  the  name  of  one  of  the  joint  plaintiffs  on  appeal  is 
stricken  out  of  the  writ  of  error  by  order  of  the  court.153  But 
if  the  appeal  is  affirmed  as  to  one  of  the  defendants,  and  not  as 
to  the  other,  the  sureties  are  still  liable.154  Nor  is  the  surety 
discharged  by  the  death  of  the  principal  and  substitution  of  the 
principal's  administrator.155  When  an  appeal  bond  is  given 
by  several  appellants,  the  undertaking  is  several  as  to  each  of  the 
principals,  and  the  sureties  are  liable  accordingly,  although  the 
judgment  is  rendered  against  some,  and  not  all,  of  their  princi- 

147  Spurgeon  v.  Smitha,  114  Ind.  453;  Scans  v.  Van  Dusen,  25  Mich.  351; 
Sharp  v.  Miller,  57  Cal.  415;  Joslyn  v.  Eastman,  46  Vt.  258;  Hampshire 
Bank  v.  Pillings,  17  Pick.  87. 

14S  Smith  v.  Huesman,  30  Ohio  St.  662;  Sharp  v.  Bedell,  10  111.  88; 
Hinckley  v.  Kreitz,  58  N.  Y.  583. 

149  Sharp  v.  Bedell,  10  111.  88. 

150  Robinson  v.  Plimpton,  25  N.  Y.  484 ;  Smith  v.  Crouse,  24  Barb.  433.  • 

151  Evers  v.  Sager,  28  Mich.  47 :  Post  v.  Shafer,  63  Mich.  85 ;  Sage  v. 
Strong,  40  Wis.  575;  Langley  v.  Adams,  40  Me.  125. 

162  Thomas  v.  Cole,  10  Heisk.  411. 
183Tarner  v.  Nance,  5  Ala.  718. 

m  Alber  v.  Froehlich,  39  Ohio  St.  245;  McFarlane  v.  Howell,  91  Tex.  213; 
Ives  v.  Hulce,  17  111.  App.  35;  Hood  v.  Mathis^  Nev?  308. 

1H  Bell  v.  Walker,  54  Neb.  222  ;  Piercy  v.  Piercy.  1  lied.  Eq.  (N.  Car. )  214. 


166  SURETYSHIP    AND    GUARANTY.  (Ch.  9 

pals  on  appeal.150  Unless  provided  otherwise  by  statute,  the 
contract  of  two  or  more  sureties  on  the  same  appeal  is  joint  only, 
and  not  joint  and  several  or  several,157  so  the  discharge  of  one 
discharges  all.158 

And  so  where  the  name  of  one  of  the  joint  plaintiffs  in  error 
is  stricken  out  of  the  writ  of  error  by  order  of  the  court  the 
sureties  are  discharged.159 

§  227.  Enlargement  of  Claim. — The  increase  of  the  claim 
without  the  sureties'  consent  destroys  their  liability  where  the 
bond  is  for  a  definite  amount,  and  the  enlargement  exceeds  this 
amount.160  But  if  the  bond  is  to  secure  any  judgment  which 
may  be  rendered  without  regard  to  a  specified  amount,  an  in- 
crease in  the  demand  in  the  appellate  court  will  not  release  the 
sureties.161  Some  courts  hold  that  there  is  no  release  of  the 
surety  by  reason  of  an  increase  of  liability  by  a  subsequent 
legislative  enactment.162 

§  228.  Agreement  of  Litigants. — Sureties  are  discharged 
by  any  agreement  of  the  litigants  by  which  the  obligation  of  rhe 
judgment  appealed  from  is  varied,  or  the  time  of  payment  is 
suspended.163  Thus,  where  the  parties  agreed  that  the  judg- 
ment might  be  paid  in  installments,  after  the  appeal  bond  was 
signed,  and  the  debtor  failed  to  pay  as  agreed,  the  sureties  are 
discharged.164     And  so  where  the  litigants  consent  to  an  affirrn- 

1MMcFarlane  v.  Howell,  91  Tex.  218;  Ives  v.  Hulce,  17  111.  App.  35; 
Warner  v.  Cameron,  64  Mich.  21. 

167  Wood  v.  Fisk,  63  N.  Y.  249;  Pickersgill  v.  Lahens,  15  Wall.  140. 
158  Gross  v.  Bouton,  9  Daly,  25. 
"'Tarner  v.  Hance,  5  Ala.  718. 

180  Sage  v.  Strong,  40  Wis.  575;  Willis  v.  Crooker,  1  Pick.  204. 

181  Dressier  v.  Davis,  12  Wis.  58;  Masser  v.  Strickland,  17  S.  &  R.  354; 
Hare  v.  Marsh,  61  Wis.  435. 

182  Horner  v.  Lyman,  4  Keyes  (N.  Y.),  237;  State  v.  Swinney,  60  Miss. 
39;  White  v.  Prigmon,  29  Ark.  208.  Compare  Davis  v.  People,  1  Gil. 
(111.)    409. 

"s  Comers  v.  Cox,  1  Stew.  (Ala.)  262;  Gardner  v.  Watson,  13  111.  347; 
Win</at.<-  v.  Wilson,  53  Ind.  78. 

194  Leonard  v.  Gibson,  6  111.  App.  503. 


§    229)  SURETIES    ON    BONDS.  167 

ance  of  the  judgment  on  appeal,  the  sureties  are  discharged;165 
and  so  if,  by  consent  of  the  parties,  judgment  is  taken  against  a 
portion  only  of  the  appellants;106  and  so  where  the  creditor  sus- 
pends execution  on  the  judgment  without  consent  of  sureties.167 
Where  the  undertaking  of  a  surety  is  to  pay  any  judgment 
rendered  against  his  principal,  he  is  liable  notwithstanding 
another  maker  of  the  note  sued  on  was  made  a  party  in  the 
appellate  court  and  judgment  rendered  against  both  makers.108 
And  a  non-suit  may  be  set  aside  by  agreement  on  appeal  with- 
out discharging  the  sureties.169 

§  229.  Successive  Appeal  Bonds  are  Cumulative. — The 
sureties  on  an  appeal  bond  to  an  intermediate  court  are  not  dis- 
charged by  a  second  appeal  with  a  new  bond  to  a  higher 
court.170  Thus,  a  surety  on  an  appeal  bond  to  an  appellate 
court  is  not  released  by  the  execution  and  approval  of  a  bond 
with  a  new  surety  for  further  appeal  of  the  cause  to  the  higher 
court,  the  bonds  being  in  such  case  cumulative  securities.171 

Another  question  comes  up  under  this  head,  as  to  the  relative 
rights  of  the  two  sets  of  sureties.  As  between  different  sets 
of  sureties  who  undertake  to  secure  the  same  debt,  although  in 
different  stages  of  legal  proceedings,  the  primary  liability  rests 
upon  the  later  set,  and  if  they  be  discharged  by  the  creditor, 
the  first  sureties  will  thereby  also  be  discharged,172  because  it 
deprives  them  of  a  remedy  over  to  which  they  would  otherwise 
have  been  entitled.173 

1W  Johnson  v.  Flint,  34  Ala.  673.  Compare  Amnions  v.  Whitehead,  31 
Miss.  99;  Chase  v.  Beraud,  29  Cal.  138. 

166Shimer  v.  Hightshue,  7  Blackf.    (Ind.)     238. 

1OTWingate  v.  Wilson,  53  Ind.  78. 

1MHelt  v.  Whittier,  31  Ohio  St.  475,  distinguishing  Lang  v.  Pike,  27  Ohio 
St.  498;  Johnson  v.  Reed,  47  Neb.  322;  Hood  v.  Ma  this,  21  Mo.  308; 
Potter  v.  Van  Vranken,  36  N.  Y.  629. 

1S»  Bailey  v.  Rosenthal,  56  Mo.  385. 

""Chester  v.  Broderick,  131  N.  Y.  549. 

m  Beeker  v.  People,  164  111.  267. 

m  Culliford  v.  Walser,  158  N.  Y.  65. 

173  Hinckley  v.  Kreitz,  58  N.  Y.  583. 


168  SURETYSHIP  AND  GUARANTY.  (Ch.  9 

§  230.  Indemnity  Bonds. — If  the  indemnity  bond  provides 
to  save  the  officer  harmless  from  any  damages  by  a  levy  and 
sale  of  the  property,  there  is  no  breach  of  condition  until  the 
officer  has  suffered  actual  damages  by  the  payment  of  a  claim 
against  him.174  If  the  condition  of  the  bond  imports  an  under- 
taking to  save  the  officer  harmless  from  any  liability,  the  officer 
has  the  right  of  action  upon  the  bond  as  soon  as  a  liability  is 
incurred,  without  the  necessity  of  showing  any  payment.175 

§  231.  Liability  on  Indemnity  Bonds. — It  is  the  general 
rule,  that  if  a  judgment  creditor  gives  a  bond  of  indemnity  to 
the  officer  to  induce  him  to  levy  upon  certain  property  and  sell 
it,  in  the  event  of  such  property  not  being  subject  to  execution, 
he  becomes  a  joint  trespasser  with  the  officer  and  liable  for  the 
tort;176  and  so  are  the  sureties  upon  such  bond  in  trespass,177 
because  all  persons  who  direct  or  request  another  to  do  a  tres- 
pass are  liable  as  co-trespassers,  and  a  bond  of  indemnity  i3 
virtually  a  request  to  trespass  when  the  seizing  of  the  property 
is  unlawful.178 

However,  in  some  States  it  is  held  that  where  the  surety  does 
not  actually  participate  in  the  unlawful  proceeding  he  cannot 
be  held  liable  for  the  officer's  tort.179 

§  232.  Injunction  Bonds — Liability  of  Surety. — The 
liability  of  a  surety  on  an  injunction  bond  must  be  strictly  con- 
strued, and  he  cannot  be  held  liable  beyond  the  precise  terms  of 
his  undertaking.180  So  he  is  not  liable  for  the  unlawful  acts 
of  his  principal  which  are  done,  save  the  damages  which  natur- 

171  Gilbert  v.  Wiman,  1  N.  Y.  550. 

176  White  v.  French,  15  Gray,  339. 

"•Knight  v.  Nelson,  117  Mass.  458;  Herring  Ho,  pock,  15  N.  Y.  409; 
Lovejoy  v.  Murray,  3  Wall.  1. 

177  Wetzell  v.  Waters,  18  Mo.  396;  Ford  v.  Williams,  13  N.  Y.  584;  Screws 
v.  Watson,  48  Ala.  628;  Herring  v.  Hoppock,  15  N.  Y.  409. 

"•Herring  v.  Hoppock,  15  N.  Y.  409. 

"'McDonald  v.  Felt,  49  Cal.  354;  Dawson  v.  Baum,  3  Wash.  T.  464; 
Offterdinger  v.  Ford,  92  Va.  636. 

"•Ovington  v.  Smith,  78  111.  250;  Hall  v.  Williamson,  9  Ohio  St.  17; 
Lewis  v.  Leathey,  14  Mo.  App.  564. 


§    233)  SURETIES    ON    BONDS.  169 

ally  result  from  the  legal  effect  of  the  writ  of  injunction.181 
The  surety  will  be  held  only  liable  to  the  precise  terms  of  his 
bond.  Thus,  where  a  judgment  was  stated  in  the  bond  to  have 
been  recovered  at  a  certain  term  of  court,  when  in  fact  it 
was  at  another  term  in  the  same  year,  the  surety  will  be  dis- 
charged.182 He  cannot  be  held  beyond  the  terms  of  his  con- 
tract, and  if  these  terms  are  varied  without  his  consent  he  will 
be  discharged.183  But  if  the  appellant  obtains  an  injunction 
restraining  the  collection  of  the  judgment  affirmed  on  appeal 
and  without  the  consent  of  the  sureties,  this  does  not  discharge 
them.184 

§   233.  When   Suit  May  Be  Brought  for  Breach. — A 

surety  on  an  injunction  bond  is  entitled  to  have  the  case  against 
his  principal  tried  according  to  the  form  of  law,  and  a  final 
decree  entered  against  him  in  court.  Until  there  is  such  a  final 
decree  or  determination  of  the  equity  of  the  suit,  the  surety  is 
not  liable. 1S5  And  there  must  be  a  decision  upon  the  merits. 
So  a  surety  is  discharged  upon  an  injunction  bond,  by  an  agree- 
ment entered  into,  without  his  consent,  by  the  parties  litigant,  to 
have  the  equity  suit  tried  and  determined  in  an  irregular  way, 
after  the  term  of  the  court  had  ended. 1S6  If  there  be  a  corrupt 
arrangement  between  the  creditor  and  principal  by  which  the 
injunction  is  dismissed,  the  surety  is  discharged;187  but  in  the 
absence  of  fraud,  the  dismissal  of  the  injunction  by  agreement 
will  not  discharge  the  surety.188 

If  an  agreement  is  made  between  the  parties,  but  the  surety's 
liability  is  not  changed,  he  is  not  discharged.     Thus,  an  agree- 

181  Cummings  v.  Mugge,  94  111.  186. 

182  Morgan  v.  Blackiston,  5  Har.  &  J.  61. 

183  Hall  v.  Williamson,  9  Ohio  St.  17. 

184  Hodges  v.  Gervin,  6  Ala.  478. 

186  Monroe  v.  Gifford,  35  Iowa,  646;  Gray  v.  Kerr,  33  Mo.  159;  Bemis  r. 
Gannett,  8  Neb.  236;  Large  v.  Steer,  121  Pa.  St.  30;  Baker  v.  Frellson,  32 
La.  Ann.  822;  Mix  v.  Vail,  86  111.  40;  Loomis  v.  Brown,  16  Barb.  325. 

188  Baker  v.  Frellson,  32  La.  Ann.  322. 

187  Boynton  v.  Robb,  22  111.  525. 
188Boynton  v.  Phelps,  52  111.  210. 


170  SURETYSHIP    AND    GUARANTY.  (CL  9 

ment  of  the  parties  -which  the  court  carries  out,  which  is  in 
effect  a  partial  dissolution,  the  surety's  liability  not  being  in- 
creased, does  not  release  him.1S9  So  if  an  order  by  stipulation 
modifying  an  injunction,  does  not  change  the  liability  of  the 
principal  or  surety,  the  latter  is  not  released.190 

§  234.  Liability,  Joint  and  Several. — The  undertaking 
of  a  surety  in  an  injunction  bond,  where  there  are  several  com- 
plainants, is  in  law  for  the  principals,  several  as  well  as  joint. 
The  surety  is  bound  that  each  and  all  of  his  principals  shall 
perform  and  fulfill  whatever  decree  may  be  rendered  in  the 
cause  against  all  or  either  of  them.  Hence,  the  abatement  of  a 
suit  in  equity  as  to  one  of  several  joint  plaintiffs  by  the  neglect 
of  both  parties  to  revive;  or  the  discharge  of  one  upon  some 
ground  applicable  to  him  alone,  cannot  affect  the  liability  of  the 
surety  for  the  surviving  party  or  parties  against  whom  the 
final  decree  may  have  been  properly  rendered.191 

§  235.  "What  Law  Governs. — An  injunction  bond  must  be 
construed  with  reference  to  the  law  in  force  when  it  was  exe- 
cuted. The  liability  of  the  principal  or  surety  cannot  be 
changed  by  the  passage  of  a  statute  which  takes  effect  after  the 
execution  of  the  bond.  Thus,  a  statute  passed  before  execution 
of  a  contract  or  injunction  bond,  but  which  does  not  take  effect 
until  afterwards,  is,  as  to  such  contract,  inapplicable,  and  can 
have  no  effect  on  the  contract  or  bond.102  The  measure  of 
liability  of  sureties  is  fixed  by  the  terms  of  the  instrument  they 
sign,  and  such  undertaking  cannot  be  enlarged  or  varied  by 
judicial  construction.  Their  undertaking  will  be  construed  as 
the  words  used  are  ordinarily  understood.193 

§  236.  Dissolution  by  Series  of  Orders. — An  injunction 

*"  Barkerbush  v.  Dorsett,  138  111.  167. 
"•  Keith  v.  Henkleman,  173  111.  137. 
l"Kflly  v.  Gordon,  3   Head,  683. 
M  Mix  v.  Vail,  86  111.  40. 
"»Mix  v.  Singleton,  86  111.  104. 


§  237-239)  sureties  on  bonds.  171 

may  bo  dissolved  by  a  series  of  orders,  one  dissolving  as  to  one 
part  one  day,  and  afterwards  another,  by  consent  of  the  parties; 
and  so  long  as  the  liability  of  the  surety  is  not  made  different  or 
more  burdensome  thereby  than  it  would  have  been  by  a  single 
dissolution,  embracing  the  entire  subject-matter  of  the  injunc- 
tion, the  surety  will  not  be  discharged.194 

§  237.  Concluded  by  Judgment  Against  Principal. — A 
surety  on  an  injunction  bond  cannot  go  behind  the  decree  of 
court  to  raise  questions  of  illegality  as  to  an  agreement  on  which 
it  is  founded.195  And  the  decree  of  court  cannot  be  set  aside,  on 
an  injunction  bond,  by  the  surety,  because  the  judgment  against 
principal,  in  the  absence  of  fraud  or  mistake,  is  conclusive  as 
to  him.196 

§  238.  Replevin  Bond. — Sureties  on  a  replevin  bond  are 
bound  only  to  the  full  value  of  the  property  not  forthcoming  on 
demand.197  They  are  represented  in  a  replevin  suit  by  the 
plaintiff  who  has  given  the  bond,  and  are  identified  with  him  in 
interest,  so  as  to  be  concluded  by  the  proceedings  in  the  suit.198 
The  surety  cannot  go  behind  the  judgment  on  a  replevin  bond 
against  the  principal  to  question  its  validity  except  upon  the 
ground  of  fraud  or  mistake.199 

§  239.  Discharge  of  Surety. — Where  a  party  begins  a  re- 
plevin suit  and  gives  a  bond  conditioned  to  prosecute  the  action 
to  final  judgment,  he  commits  a  breach  of  his  bond  by  discon- 
tinuing the  suit  before  final  judgment,  though  the  damages  may 
be  nominal,  and,  hence,  the  sureties  on  such  bond  are  not  dis- 

184  Blackerbush  v.  Dorsett,  138  111.  167. 

mOelrichs  v.  Spain,  15  Wall.  211;  McAllister  v.  Clark,  86  111.  236. 
196  McAllister  v.  Clark,  86  111.  236.       See,  also,  Richardson  v.  Bank,  57 
Ohio  St.  299. 

»"]imP«  v,  TWic    3f,  Tpv    fipft, 

183  Washington  Ice  Co.  v.  Webster,  15  Wall.  426. 

m  Richardson  v.  Bank,  57  Ohio  St.  299;  Thomas  v.  Markman,  in  NeV, 
623;  Schott  v.  Youree,  142  111.  233;  McFadden  v.  Fritz,  110  Ind.  1-  Cox  v. 
Harbranft,  154  Pa.  St.  457. 


172  SURETYSHIP  AND  GUARANTY.  (CL  9 

charged  by  his  dismissal  of  the  suit.200  Aud  where  the  replevin 
bond  is  insufficient  the  court  may  order  another  bond,  and  the 
latter  will  have  no  effect  on  the  liability  of  the  sureties  on  the 
first  bond,  so  as  to  discharge  them.201  And  if  the  additional 
bond  is  not  executed  and  filed  according  to  the  order  of  court, 
the  case  may  be  dismissed.202 

If  the  damages  awarded  are  less  than  the  amount  named  in 
the  first  bond,  judgment  may  be  rendered  against  the  sureties 
on  the  first  bond  alone.203  The  new  bond  is  not  substituted 
for  the  old,  but  is  additional. 

§  240.  New  Parties — Substitution. — If  a  new  party  be 
substituted  for  the  defendant,  it  discharges  the  surety.204  And 
so  if  one  of  the  defendants  is  discharged  during  the  suit  the 
surety  on  the  replevin  bond  is  discharged.205  But  it  is  held  that 
a  court  may  substitute  the  owner  of  the  property  in  an  action  of 
replevin,  in  the  place  of  his  agent,  against  whom  the  suit  was 
brought,  and  that  such  substitution  does  not  discharge  the  sure- 
ties on  the  bond,  but  they  continue  bound  for  the  new  party, 
equally  as  if  he  had  been  the  original  and  only  defendant.206 

§  241.  Varying  the  Terms  of  the  Bond. — A  surety  is  dis- 
charged if  the  replevin  bond  is  varied  without  his  consent. 
Thus,  where  the  parties  agree  to  refer  the  case  to  arbitration, 
without  the  surety's  consent,  and  the  case  is  so  settled,  the  surety 
is  discharged.207  The  surety  does  not  undertake  to  pay  the 
daicnges  which  may  result,  only  as  determined  by  a  court  of 
competent  jurisdiction ;  if  the  controversy  is  referred  to  arbi- 
trate:^,  this  discharges  the  sureties.208 

200  Alderman  v.  Roesel,  52  S.  Car.  162. 

201  Smith  v.  Whitten,  117  N.  Car.  389. 

202  Smith  v.  Ruby,  6  Heisk.  546. 
■"Smith  v.  Whitten,  117  N.  Car.  389. 
204  Smith  v.  Ruby,  6  Eeisk.  546. 

"■  Harris  v.  Taylor,  3  Sneed,  536.  See,  also,  Wiggins  v. Wells,  2  Sneed,  154. 

m  Banna  v.  Petroleum  Co.,  23  Ohio  St.  622. 

■"  Archer  v.  HaJe,  A  Bing.  464. 

■"Perkins  v.  Rudolph,  36  Til.  306:  Moore  v.  Bowmaker,  3  Price,  214. 


§  242, 243)  judicial  sureties.  173 


CHAPTER  X. 

BONDS  OF  PERSONS  ACTING  UNDER  JUDICIAL  SANCTION. 

§  242.  Executors  and  Administrators. — The  general  rule 
is  that  a  default  of  the  executor  or  administrator  must  be  estab- 
lished in  proper  proceedings  against  him  before  the  sureties  can 
be  prosecuted  upon  their  bond  for  the  default  of  their  principal.1 
But  wherever  the  principal  absconds,  conceals  himself,  or  re- 
sides without  the  jurisdiction  of  the  court,  then  suit  will  lie  on 
the  bond  against  the  sureties  without  recourse,  in  the  first  place, 
to  the  principal.  Such  cases  form  an  exception  to  the  general 
rule  which  is  established  for  the  protection  of  the  sureties  where 
it  can  be  done  consistently  with  the  preservation  of  the  rights  of 
legatees  and  creditors.2  And  so  where  the  executor  or  adminis- 
trator is  dead,  the  sureties  may  be  sued  at  once,  because  a  de- 
mand upon  the  principal  has  become  impossible.3  However,  in 
some  jurisdictions  it  is  not  necessary  to  a  right  of  recovery  that 
a  default  has  been  established  against  the  principal.4  If  the 
bond  has  no  obligee,  it  is  void.5  The  liability  of  the  surety 
cannot  extend  beyond  the  terms  of  the  bond.6 

§  243.  Estoppel  by  Judgment  Against  Principal. — In  the 
absence  of  fraud  or  collusion,  the  sureties  are  concluded  by  a 
decree  of  the  proper  court  as  to  their  principal's  liability,  even 
though  they  are  not  parties  to  such  suit.7     However,  if  the  prin- 

1Hood  v.  Hood,  85  N.  Y.  561;  Haight  v.  Brisbin,  100  N.  Y.  219;  State  v. 
Pare,  28  Mo.  App.  512;  Commonwealth  v.  Stub,  11  Pa.  St.  150;  Alexander 
t.  Bryan,  110  U.  S.  414. 

2  Commonwealth  v.  Wenrick,  8  Watts,  159;  Giles  v.  Brown,  60  Ga.  658. 

1  People  v.  Admire,  39  111.  251.  See,  also,  Bischoff  v.  Engel,  10  App. 
Div.  240. 

4  Tucker  v.  People,  87  111.  76;  State  v.  Johnson,  7  Blackf.  (Ind.)  520; 
State  v.  Shelby,  75  Mo.  482 ;  Morgan  v.  West,  43  Ga.  275. 

"Tidhall  v.  Young  (Neb.),  78  N.  W.  Rep.  507. 

•  People  v.  Hoffman,  182  111.  390. 

T  Judge  v.  Sulloway,  68  N.  H.  511 ;  Meyer  v.  Borth,  97  Wis.  352;  Heard  r. 


174  SURETYSHIP  AND  GUARANTY.  (Ch,  10 

cipal  is  not  properly  before  the  court,  and  the  court  has  no  juris- 
diction, then  the  surety  is  not  concluded  by  such  decree.8 

In  some  jurisdictions  it  is  held  that  a  judgment  against  an 
administrator  or  executor  is  only  prima  facie  evidence,  and  not 
conclusive  upon  the  surety.9  Thus,  a  surety  may  plead  and 
prove  after  judgment  against  his  principal,  the  deficiency  of 
assets  in  the  hands  of  his  principal,  liable  to  the  payment  of  the 
debt.10  And  so  sureties  on  a  bond  are  not  liable  to  a  creditor  of 
the  estate  for  the  amount  of  judgment  obtained  by  him  in  an 
action  against  the  principal,  commenced  after  the  claim  was 
barred  by  the  statute  of  limitations,  to  which  action  the  princi- 
pal appeared  and  plead  the  statute,  and  then  let  the  suit  go  by 
default.11  And  so  if  the  administrator  fails  to  plead  the  statute 
of  limitations,  in  an  action  against  the  surety,  he  may  set  it  up 
as  a  defense.12 

§  244.  Income  of  Real  Estate. — A  surety  on  an  administra- 
tor's or  executor's  bond  is  liable  for  conversion,  waste  or  appro- 
priation of  property  of  the  decedent's  estate  only  of  such  prop- 
erty as  comes  into  his  hands  subject  to  administration  under  the 
bond.13  When  sureties  sign  the  administration  bond,  they  con- 
tract only  to  indemnify  the  persons'  interest  in  the  personal 
estate  for  which  such  bond  is  given,  and  will  not  be  liable  on  it 
for  the  proceeds  of  real  estate  sold  by  such  principal ;  they  are 
not  liable  for  the  income  of  the  decedent's  real  estate.14     Where 

Lodge,  20  Pick.  53;  Stovall  v.  Banks.  10  Wall.  583:  Casoni  v.  Jerome,  58 
N.  Y.  314;  Housh  v.  People,  66  111.  17S;  McKim  v.  Haley,  173  Mass.  112; 
Harrison  v.  Clark.  87  N.  Y.  572. 

"Robinson  v.  Hod?e,  117  Mass.  222;  State  v.  Drake.  52  Ark.  350;  Loop  v. 
Nbrthup,  59  Hun,  75. 

•Bennett  v.  Graham,  71  Ga.  211;  Bird  v.  Mitchell.  101  Ga.  46. 

"Gibson  v.  Robinson,  91  Ga.  756. 

"Robinson  v.  Hodge,  117  Mass.  222. 

"Dawes  v.  Shed,  15  Mass.  6.     Bee,  also,  Thayer  v.  Hollis,  3  Mot.  3G9. 

•»  Jackson  v.  Wilson.  117  Ala.  432. 

"Douglass  v.  Mayor.  56  How.  Pr.  178;  Young  v.  People.  35  Til.  App. 
363;  Commonwealth  v.  Gibson,  8  Watts,  214;  Reed  v.  Commonwealth,  11 
Seri.  ft  R.  Ml;  Robinson  v.  Millard,  133  Mass.  236;  Hoffman  v.  People, 
78  111.  App.  245,  182  111.  390. 


§    245)  JUDICIAL    SURETIES.  175 

the  executor  has  authority  to  sell  real  estate  and  convert  it  into 
personalty,  such  sale  works  an  equitable  conversion,  it  is  held, 
and  the  real  estate  is  to  be  considered  as  personal  property,  and 
the  sureties  can  bo  ultimately  held  responsible  for  the  results  of 
such  action.15  But  other  courts  hold  that  a  new  bond  shall  be  exe- 
cuted by  the  principal  or  executor,  on  selling  real  estate,  and 
the  sureties  on  the  first  bond  are  not  liable  for  his  default  as  to 
the  accounting  for  proceeds  of  such  sale,  though  the  executor  has 
authority  to  re-invest  them.16  Some  courts  hold  that  the  sure- 
ties on  the  first  bond  are  liable  for  the  income  of  real  estate.17 
But  this  matter  is  to  a  great  extent  regulated  by  statute,  which 
makes  sureties  responsible  for  the  proceeds  or  rents  and  profits 
of  real  estate  received  by  the  executor  or  administrator  in  his 
representative  capacity,  as  well  as  for  personalty.18 

There  is  a  conflict  of  authority  in  the  decisions  of  the  several 
States  as  to  whether  the  sureties  are  liable  for  the  proceeds  of 
real  estate,  received  by  the  principal,  and  they  cannot  be  recon- 
ciled by  reason  of  the  differences  which  exist  in  the  form  of  the 
bond  considered  in  the  several  cases.19  The  local  statute  and 
form  of  bond  should  be  consulted  in  every  case. 

§  245.  Sale  of  Real  Estate  Beyond  Jurisdiction  of 
Court. — By  the  weight  of  authority,  the  sale  of  real  estate,  be- 
yond the  jurisdiction  where  the  will  is  probated,  is  inoperativo 
and  can  have  no  extra-territorial  force  or  validity ;  and  the  execu- 
tor of  such  will  cannot,  because  of  his  appointment  in  accordance 
with  the  laws  of  one  State,  thereby  acquire  authority  to  sue  for, 

15  Hood  v.  Hood,  85  N.  Y.  561 ;  Hartzell  v.  Commonwealth,  42  Pa.  St.  453; 
Emmons  v.  Gordon,   140  Mo.  490. 

"Hoffman  v.  People,  78  111.  App.  345;  Bunce  v.  Bunce,  65  Iowa,  106; 
Robinson  v.  Millard,  133  Mass.  236;  Morris  v.  Cooper,  35  Kan.  156;  War- 
wick v.  State,  5  Ind.  350. 

1TDix  v.  Morris.  66  Mo.  514;  Lindley  v.  State,  115  Ind.  502;  Mann  v. 
Everts,  64  Wis.  372 ;  Reherd  v.  Long,  77  Va.  839. 

"Hawkins  v.  Kimball,  57  Ind.  45;  Decker  v.  Decker,  74  Me.  465;  Gris- 
wold  v.  Frink,  22  Ohio  St.  90;  Dix  v.  Morris,  66  Mo.  514;  Reherd  v.  Long, 
77  Va.  839. 

19  Probate  Court  v.  Hazard,  13  R.  I.  3.  This  case  discusses  the  different 
decisions,  and  its  review  is  valuable.     White  v.  Ditson,  140  Mass.  351. 


176  SUBETYSHIP    AND    GUARANTY.  (Ch.  10 

or*  in  any  manner  intermeddle  with  such  realty  or  effects  of  his 
testator,  unless  the  will  be  there  proved,  or  the  law  of  such  State 
dispenses  with  the  probate  conferring  the  requisite  permission.20 
Hence,  the  sureties  of  an  executor  are  not  liable  for  the  default 
of  an  executor  to  account  for  the  proceeds  of  the  sale  of  real 
estate  in  another  State,  where  it  is  not  shown  that  the  will  was 
probated  in  the  other  State,  nor  that  the  sale  was  made  in  accord- 
ance with  the  laws  of  the  other  State.21  But  there  are  authori- 
ties announcing  a  different  rul'e,  which  holds  that  where  an  exec- 
utor qualifies  in  one  State  to  sell  land  in  another  State  which 
belongs  to  his  testator,  under  the  power  of  the  will,  the  princi- 
pal and  his  sureties  are  liable  for  the  default  of  the  principal  in 
accounting  for  the  proceeds  of  such  sale  of  the  extra-territorial 
lands.22 

§  246.  Surety  is  Liable  Only  fob  Principal's  Official 
Acts. — Sureties  on  the  bond  of  an  administrator  or  executor 
are  liable  only  for  acts  of  nonfeasance  or  misfeasance  of  their 
principal  in  respect  of  his  official  acts.  If  the  principal  fairly 
and  honestly  administers  the  estate  committed  to  his  care  and 
pays  to  the  distributees  their  proper  shares  of  the  estate,  then 
his  sureties  are  discharged  from  all  obligations  upon  his  official 
bond.23  Hence,  the  giving  of  a  note  by  the  administrator  is 
such  a  departure  from  his  authority  as  to  relieve  the  estate  and 
also  his  sureties  from  liability  as  to  the  payment  of  the  note.24 

A  surety  is  not  bound  to  answer  for  the  default  of  an  executor 
or  administrator  in  any  line  of  actions  not  within  his  official 
capacity.25      So  a  surety  in  an  executor's  bond  is  not  liable  for 

*>  Kerr  v.  Moon,  9  Wheat.  565 ;  Doe  v.  McFarland,  9  Cranch,  151 ;  Lucas 
v.  Tucker,  17  Ind.  41;  Wills  v.  Cooper,  2  Ohio  St.  124;  Emmons  v.  Gordon, 
140  Mo.  490. 

11  Emmons  v.  Gordon,  140  Mo.  490. 

"  Hooper  v.  Hooper,  29  W.  Va.  276;  Judge  v.  Heydock,  8  N.  H  491. 

"Bird  v.  Mitchell,   101   Ga.  46. 

"*  Coruthwaite  v.  Bank,  57  Ind.  268 ;  Rittenhouse  v.  Ammerman,  64  Mo. 
197;  Orepory  v.  Leigh,  33  Tex.  8 13-:  Curtis  v.  Bank.  39  Ohio  St.  579. 

"Shields  v.  Smith,  8  Bush,  601;  State  v.  Elliott  (Mo.),  57  S.  W.  Rep. 
1087  ;   State  v.  Anthony,  30  Mo.  App.  638. 


§    247)  JUDICIAL    SURETIES.  177 

rents  and  profits  of  the  real  estate  of  the  testator  received  by 
executor  and  charged  to  him  by  the  court,  when  he  has  no  such 
authority  to  collect  by  law.26  The  surety  is  not  bound  to  settle 
for  the  rents  and  profits  of  the  testator's  land  converted  by  his 
principal.27  So  where  no  duty  is  imposed  upon  the  executor 
as  executor,  but  upon  him  as  a  devisee  under  the  will,  he  is 
liable  only  as  devisee,  and  not  as  executor,  and  so  there  is  no  lia- 
bility upon  his  surety  as  executor.28  In  general,  sureties  are  re- 
sponsible for  the  performance  of  the  executorial  duties  such  as 
defined  by  law,  such  as  collecting  of  the  personal  assets,  the 
faithful  performance  of  his  duties,  as  the  appropriation  of  the 
payments  to  the  debts  and  legacies  and  the  proper  accounting  of 
the  personal  property.  But  they  are  not  liable  for  failure  of  the 
execution  of  the  trusts  imposed  by  the  will.29  And  the  sureties 
on  the  bond  of  a  public  administrator  are  only  liable  for  money 
coming  into  his  hands  in  his  official  capacity.30 

§  247.  Giving  New  oe  Additional  Bond. — Whether  the 
new  or  additional  bond  releases  the  sureties  on  the  prior  bond 
depends  upon  the  statute.  It  is  generally  held  that  if  the  appli- 
cation for  a  new  bond  is  made  by  a  surety  on  the  prior  bond,  the 
surety  on  the  prior  bond  is  released  from  liability  for  all  de- 
faults of  the  principal  after  the  new  bond  is  executed  and 
approved.  But  if  the  court  acts  on  his  own  motion,  or  if  the 
application  is  made  by  some  person  other  than  a  surety,  the  new 
bond  is  ordinarily  cumulative  in  its  effect  and  the  sureties  on  the 
prior  bond  remain  liable.  In  some  jurisdictions  the  court  may, 
by  statutory  provisions,  on  the  application  of  any  surety  who  con- 
ceives himself  to  be  in  danger  by  reason  of  his  suretyship  on  the 
bond,  require  the  principal  to  give  another  bond  under  penalty 
of  being  removed  from  office.31 

"  Gregg  v.  Currier,  36  N.  H.  200. 

"McCoy  v.  Scott,  2  Rawle,  222;  Gibson  v.  Farley,  10  Mass.  280. 

"  Sims  v.  Lively,  14  B.  Mon.  433. 

"Carter  v.  Young,  9  Lea,  210;  Dranc  v.  Baylies,  1  Hum.  173;  HughJett 
v.  Hughlett,  3  Hum.  452. 

"State  v.  Elliott   (Mo.),  57  S.  W.  Rep.  1087. 

"Johnson  v.  Frequay,  1  Dana,  514;  Stevens  v.  Stevens,  3  Redf.  (N.  Y.), 
507 ;  Foster  v.  Wise,  46  Ohio  St.  20. 

12 


178  SURETYSHIP  AND  GUARANTY.  (Ch.  10 

When  the  first  bond  continues  in  force  and  is  obligatory  upon 
the  makers  as  if  the  second  had  not  been  given,  a  creditor  or 
other  person  interested  in  the  estate  has  his  election  upon  which 
bond  to  sue,  if  the  maladministration  for  which  suit  is  brought 
is  a  breach  of  both  bonds."- 

When  the  principal  gives  a  new  bond,  there  is  no  new  commit- 
ment of  the  estate  to  his  hands,  nor  is  there  any  settlement  of, 
or  rest  made  in,  his  accounts,  unless  so  ordered  by  statute.  And 
this  new  bond  covers  the  whole  liability  of  the  administrator  to 
the  estate,  whether  incurred  before  or  after  execution.33 

One  class  of  cases  holds  that  the  sureties  in  the  new  bond  are 
primarily  liable  for  the  whole  amount  for  which  the  principal 
ought  to  account;  that  is,  the  last  bond  should  be  exhausted 
before  resort  can  be  had  to  the  first  for  any  defalcation  that 
occurred  before  the  sureties  on  it  are  discharged.34  But  this  is 
contrary  to  the  general  rule.35  Still  other  courts  hold  that  the 
first  sureties  are  primarily  liable,  and  if  the  last  sureties  have 
paid  the  debt,  they  may  recover  against  the  first  the  full  amount 
paid  by  them.36 

A  surety  may  be  released  in  some  jurisdictions  after  a  settle- 
ment has  been  made  by  his  principal,  after  which  the  surety  is 
no  longer  liable,37  but  the  statute  must  be  strictly  followed.38 
So,  unless  permitted  by  statute,  a  surety  cannot  be  discharged 
upon  the  application  of  the  executor.39 

82  Pinkstaff  v.  State,  59  111.  148. 

"Scofield  v.  Churchill,  72  N.  Y.  565;  Morris  v.  Morris,  9  Heisk.  814; 
Choate  v.  Arrington,  116  Mass.  552;  Pinkstaff  v.  State,  59  111.  148;  State 
v.  Berning,  74  Mo.  87;  Foster  v.  Wise,  46  Ohio  St.  20;  Pepper  v.  Donnelly, 
87  Ky.  259;  State  v.  Barrett,  121  Ind.  92;  Rudolph  v.  Malone  (Wis.),  80 
N.  W.  Rep.  743;  Dugger  v.  Wright,  51  Ark.  232;  Brown  v.  State,  23 
Kan.  235. 

M  Bobo  v.  Vaiden,  20  S.  Car.  271 ;  Morris  v.  Morris,  9  HeisK.  814. 

88  State  v.  Berning,  74  Mo.  87 ;  Pinkstaff  v.  State,  59  111.  148 ;  Choate  v. 
Arrington,   116  Mass.  552. 

M  Corrington  v.   Foster,  51  Ohio  St.   225. 

"Clark   v.   Surety   Company,   171    111.   235. 

"Hiekereon  v.  Price,  2  Heisk.  623. 

"Bellinger  v.  Thompson,  26  Oreg.  320;  Clark  v.  Surety  Co.,  171  111.  235. 


§    248-250)  JUDICIAL   SURETIES.  179 

§  248.  Liability  of  Discharged  Surety. — It  will  be  pre- 
sumed that  the  administrator  performed  his  duty  until  the  con- 
trary is  proved;  and  to  render  a  discharged  surety  liable,  it 
must  be  alleged  and  proved  that  before  his  discharge,  the  admin- 
istrator had  misapplied  the  assets  of  the  estate.  In  the  absence 
of  such  proof,  the  surety  on  the  new  bond  is  alone  liable,40 
where  the  statute  declares  the  discharged  surety  shall  be  liable 
only  for  such  misconduct  as  happened  prior  to  giving  the  new 
bond.41 

§  249.  Sureties  on  Joint  Bonds. — If  there  are  more  than 
one  principal  of  the  estate,  and  one  or  more  of  them  are  removed, 
die  or  resign  their  office,  then  the  remaining  must  discharge  the 
whole  duties  required  by  law  respecting  the  estate.  And  the 
sureties  on  the  joint  bond  are  liable  for  the  subsequent  acts  of 
the  remaining  principals,42  during  their  administration.43  Be- 
fore discharge,  the  administrator  must  account  to  his  co-admin- 
istrators, and  then  if  the  latter  give  a  new  bond  it  operates  to 
exonerate  the  sureties  upon  the  joint  bond,  and  from  liability  for 
a  devastavit  after  such  order  of  discharge.44 

One  of  the  joint  administrators  may  bring  suit  against  the 
sureties  on  a  joint  bond  for  a  default  of  one  of  his  co-administra- 
tors and  recover  the  full  amount  of  defalcation  from  the  sure- 
ties.45 And  after  the  sureties  have  paid,  they  have  their  rem- 
edy, if  they  have  any,  against  the  administrator  who  sued  them, 
in  his  individual  capacity,  as  one  of  their  principals,  for  in- 
demnity.46 

§  250.  Allowances  to  Intestate's  Widow  and  Family. — 

"Phillips  v.  Barzeal,  14  Ala.  146;  McKim  v.  Bartlett,  129  Mass.  226 J 
State  v.  Stroop,  22  Ark.  328 ;  Beard  v.  Roth,  35  Fed.  Rep.  397. 

41  Beard  v.  Roth,  35  Fed.  Rep.  397. 

"  Dobyns  v.  McGovern,  15  Mo.  662. 

43  State  v.  Rucher,  59  Mo.  17;  Marsh  v.  People,  15  111.  284;  Brazer  T. 
Clark,  5  Pick.  96;   Towne  v.  Ammidon,  20  Pick.  535. 

"Veach  v.  Rice,  131  U.  S.  293. 

46  Boyle  v.  St.  John,  28  Hun,  454;  Sperb  v.  McCoun,  110  N.  Y.  605. 

"Boyle  v.  St.  John,  28  Hun,  454;  Sperb  v.  McCoun,  110  N.  Y.  605. 


180  SURETYSHIP    AXD    GUARANTY.  (Ch.  10 

In  the  States  where  allowances  are  made  directly  to  the  family 
of  the  decedent,  his  representatives  have  no  control  over  them. 
So  if  an  administrator  interferes  with  such  property,  he  is  indi- 
vidually liable  as  a  tort-feasor,  and,  of  course,  his  sureties  are 
not  liable  for  his  act.47  Thus,  money  on  hand  set  apart  by  law 
for  the  support  of  the  widow  of  the  decedent  and  his  family, 
belongs  to  her  for  that  purpose,  and  is  not  assets  in  the  hands  of 
the  administrator,  and  if  he  converts  it,  no  recourse  can  be  had 
against  his  sureties.48 

But  if  the  statute  requires  the  executor  or  administrator  to 
pay  over  the  money  to  the  widow  and  family,  or  specifies  arti- 
cles allowed,  then  the  sureties  on  his  bond  are  liable  for  his  de- 
fault in  non-compliance  with  the  law.49 

§  251.  Executor  or  Administrator  Debtor  to  the  Es- 
tate.— The  rule  of  the  common  law  is,  that  the  appointment  and 
qualification  of  a  debtor  tc  the  estate  as  executor  of  his  creditor's 
assets,  operates  as  a  legacy  of  the  debt  and  discharges  the  execu- 
tor from  its  payment,  and  of  course  the  sureties  on  his  bond  are 
not  liable  for  the  collection  of  such  debt.  But  this  rule  has  been 
greatly  qualified  in  England,  and  probably  never  existed  in  the 
United  States.  But  the  rule  in  the  United  States  is  not  uni- 
form. One  line  of  cases  holds  that  such  debt  becomes,  prima 
facie,  assets  in  the  hands  of  the  principal,  to  be  accounted  for 
and  adjusted  in  court  as  assets  of  the  estate  actually  realized,  and 
a  default  of  the  principal  to  account  for  such  debt,  makes  his 
sureties  liable  as  if  it  was  any  other  assets.50  That  is,  the  acts 
of  the  principal  in  dealing  with  the  instruments  of  which  his  in- 
debtedness to  the  estate  arises,  cannot  vary-  or  affect  the  rule  that, 
as  a  contract  between  him  and  the  estate,  they  are  extinguished, 
and  the  amounts  due  upon  such  instruments  have  become  assete 
of  the  estate,  and  if  default  is  made  by  the  principal,  the  sureties 

47  Morris  v    Morris,  9  Heisk.  814. 

"Roeco  v.  Cicalla,  12  Heisk.  506;  Bayless  v.  Baylees,  4  Cold.  359. 

48  Commonwealth  v.  Loogenecker,  1  Chester  County  Rep.   (Pa.)  202. 
"Waukford  v.  Waukford,  1  Salk    299;  Cheetham  v.  Ward,  1  Bos.  &  P. 

630;  Freakley  v.  Fox,  9  Barn.  &  Cr.  130;  Winship  v.  Bass,  12  Mass.  199. 


§    252)  JUDICIAL    SURETIES.  181 

are  liable  for  these  debts  as  so  much  cash  received,  though  the 
administrator  or  executor  owing  the  estate  was  insolvent  during 
the  period  of  his  office.6  *  And  the  sureties  will  not  be  discharged 
from  such  liability  by  fraud  of  the  principal  in  procuring  their 
execution  of  the  bond,  where  the  beneficiaries  of  the  estate  in 
whose  interest  the  liability  is  sought  to  be  enforced  are  them- 
selves innocent  of  the  fraud.52 

Another  line  of  cases  holds  that  if  such  principal  is  insolvent 
at  the  time  of  his  appointment,  his  failure  to  pay  his  debt  is  not 
a  breach  of  the  trust  for  which  the  sureties  are  liable ;  and  so  if 
the  principal,  in  accounting,  treats  his  own  debt  as  available 
assets,  and  the  court  decrees  distribution  accordingly,  the  sure- 
ties are  not  bound  by  the  decree,  and  a  court  of  equity  will  grant 
the  sureties  relief.53  Such  principal  should  charge  himself  with 
the  debt ;  but  his  sureties  are  not  liable  for  it,  if  they  show  that 
he  was  insolvent  beyond  the  amount  that  could  have  been  saved 
to  the  estate  by  the  exercise  of  diligence.54  But  where  the  prin- 
cipal is  solvent,  it  is  his  duty  to  inventory  and  account  for  his 
own  debts  to  the  estate.  If  he  does  not,  his  sureties  are  liable 
for  the  same.55 

§  252.  Common  Law  Rule  as  to  Executor  Being  Debtor 
to  the  Estate — Statutory  Provisions. — Except  as  against 
creditors,  an  executor's  indebtedness  to  the  testator  was  by  the 
common  law  released  or  extinguished.56        But  this  has  been 

H  McGaughey  v.  Jacoby,  54  Ohio  St.  487 ;  Tracy  v.  Cord,  2  Ohio  St.  431 ; 
Chapin  v.  Waters,  110  Mass.  195 ;  Judge  v.  Sulloway,  68  N.  H.  511 ;  Wright 
v.  Long,  66  Ala.  389;   Treweek  v.  Howard,   105  Cal.  434. 

62  McGaughey  v.  Jacoby,  54  Ohio  St.  487 ;  Treweek  v.  Howard,  105 
Cal.  434. 

"  Lyon  v.  Osgood,  58  Vt.  707 ;  Potter  v.  Titcomb,  7  Me.  302 ;  McCarty  v. 
Frazer,  62  Mo.  263;  Harker  v.  Irick,  10  N.  J.  Eq.  269;  Baucus  v.  Barr,  45 
Hun,  582,  107  N.  Y.  624;  Rader  v.  Yeargin,  85  Tenn.  486;  Garber  v.  Com- 
monwealth, 7  Pa.  St.  265;  Piper's  Estate,  15  Pa.  St.  533. 

"State  v.  Gregory,  119  Ind.  503. 

"Probate  Court  v.  Merriam,  8  Vt.  234;  Condit  v.  Winslow,  106  Ind.  142; 
Piper's  Estate,  15  Pa.  St.  533:  Rader  v.  Yeargin,  85  Tenn.  486. 

"Gardner  v.  Miller,  19  Johns.  188;  Marvin  v.  Stone,  2  Cow.  (N.  Y.) 
781;  Co.  Litt.  264,  b,  note  1;  2  Bl.  Com.  512;  Thomas  v.  Thompson,  2 
Johns.   471 


182  SUEETYSHIP  AND  GUARANTY.  (Cli.  10 

changed  by  statute  iu  many  States,  making  him  liable  for  his 
own  debt  to  the  estate  and  thereby  binding  his  sureties.57 

But  without  any  special  statute,  this  doctrine  was  accepted  in 
Massachusetts,  Maine,  Connecticut  and  Vermont,58  either  on  the 
ground  of  statutes  providing  for  the  settlement  of  estates  and 
the  distribution  of  property  not  devised  or  liquidated,59  or  on 
the  ground  that  the  common  law  doctrine  had  never  been  adopted 
by  the  State.60  This  is  the  general  rule,  whether  controlled  by 
special  statute  or  not,  as  the  common  law  is  repudiated.  So  the 
sureties  are  liable  for  the  executor's  or  administrator's  debt  to 
the  testator,  as  they  are  his  privies,  and  their  liability  is  co- 
extensive with  that  of  the  principal.61 

So  whenever  the  probate  court  enters  a  decree  against  their 
principal  which  binds  the  principal,  their  liability  is  also  de- 
limited.62 And  the  administrator  is  not  permitted  to  show  that 
he  could  not  collect  a  debt  due  from  himself.63  The  consequence 
is,  that  he  and  his  sureties  are  liable  for  the  amount  of  such 
debt,  in  like  manner  as  if  he  had  received  it  from  any  other 
debtor  of  the  testator ;  and  it  is  presumed  that  the  sureties  had 
in  contemplation  this  liability  when  they  executed  the  bond,  and, 
hence,  cannot  complain  of  their  own  natural  and  legal  conse- 
quence of  their  voluntary  act.64  It  is  held  that  if  at  the  time  the 
surety  assumes  responsibility  the  executor  is  able  to  pay  his 
debt  to  the  estate,  or  afterwards,  during  the  settlement  of  the 
estate,  he  becomes  able  to  pay  it,  the  surety  is  responsible  for  it 
as  assets.     When  the  executor  is  solvent  and  able  to  pay,  and 

"Judge  v.  Sulloway,  68  N.  H.  511;  Norris  v.  Towle,  54  N.  H.  290; 
Soverhill  v.  Snyder.  59  N.  Y.  140;  Baucus  v.  Stover,  89  N.  Y.  1  ;  In  re  Con- 
salus,   95   N.   Y.   340. 

"Leland  v.  Felton,  1  Allen,  531;  Winship  v.  Bass,  12  Mass.  198;  Probate 
Court  v.  Merriam,  8  Vt.  234. 

"  Winship  v.  Bass,  12  Mass.  198;  Probate  Court  v.  Merriam,  8  Vt.  234. 

"Bacon  v.  Fairman,  6  Conn.  121  ;  Williams  v.  Morehouse,  9  Conn.  470; 
Davenport  v.  Richards,  It!  Conn.  310:  Potter  v.  Titcoinh.  7   Me.  302. 

"Wattles  v.  Hyde,  9  Conn.  10;  Judge  v.  Sulloway,  68  N.  It.  511. 

"Ktovall  v.  Banks,  10  Wall  583;  Choate  v.  Arrington,  116  Mass.  552; 
Towle  v.  Towle,  46  N.  H.  431 ;  Deobold  v.  Oppermann,  111  N.  Y.  531. 

"Kinney  v.  Ensign,  18  Pick.  232. 

M  Stevens  v.  Gaylord,  1 1  Mass.  256. 


§    253)  JUDICIAL    SURETIES.  183 

no  surety  is  needed,  the  surety  is  responsible  for  his  debt;  but 
where  the  executor  is  unable  to  pay  and  a  surety's  liability 

should  be  valuable,  the  surety  is  not  liable.65 

.<■>,■. 

§  253.  General  Liability  of  Sureties. — The  liability  of 
sureties  on  the  bond  of  executors  and  administrators  is  generally 
co-extensive  with  that  of  their  principal.66  Thus,  they  are 
liable  for  misappropriation  of  funds  of  the  estate  ;67  for  non- 
payment of  the  profits  of  such  fund;6S  for  the  principal's  de- 
fault in  performing  his  official  duties.69  ?■!  But  the  sureties  are 
not  liable  for  acts  which  are  not  within  the  scope  of  their  prin- 
cipal's powers  and  duties,  even  if  such  acts  are  ordered  to  be 
done  by  the  court  ;70  nor  when  the  acts  of  the  principal  are  per- 
sonal and  not  official.71  So  where  the  agent  of  a  creditor  of  the 
decedent  takes  out  letters  of  administration  pursuant  to  a  power 
of  attorney  given  him  by  his  principal,  the  sureties  on  his  bond 
are  not  liable.72  A  failure  of  the  principal  to  make  proper  col- 
lection of  assets  is  a  maladministration  for  which  the  sureties 
are  liable;73  and  so  where  the  executor  neglects  to  follow  the 
directions  in  the  will  ;74  and  so  where  he  neglects  to  sell  the  goods 
of  the  estate  when  necessary;75  and  when  he  fails  to  take  proper 
security  for  goods  sold  on  credit.76    If  his  acts  of  omission  work 

"5  Lyon  v.  Osgood,  58  Vt.  707 ;  Harker  v.  Irick,  10  N.  J.  Eq.  269. 

"Goltra  v.  People,  53  111.  224;   State  v.  Purdy,  67  Mo.  89. 

•'  State  v.  Wilmer,  65  Md.  178;  State  v.  Brown,  80  Ind.  425. 

68  Watson  v.  Whitten,  3  Rich.   ( S.  Car. )   224. 

"Worgang  v.  Clipp,  21  Ind.  119;  State  v.  Anthony,  30  Mo.  App.  638; 
Wade  v.  Graham,  4  Ohio,  126;  Clarke  v.  West,  5  Ala.  117;  Smith  v. 
Jewett,  40  N.  H.  513. 

T0  Nelson  v.  Woodbury,  1  Me.  251. 

"Merrill  v.  Harris,  26  N.  H.  142;  McLean  v.  McLean,  88  N.  Car.  794; 
Kennedy  v.  Adickes,  37  S.  Car.  174;  Sarle  v.  Court,  7  R.  I.  270;  Davis  v. 
Hoopes,  33  Miss.  173. 

"Moodick  v.  Penman,  3  Desaus.    (S.  Car.) 

"Butler  v.  Sisson,  49  Conn.  580;  Lyon  v.  Osgood,  58  Vt.  707;  Lacy  v. 
Stamper,  27  Gratt.  42 1. 

T4Sanford  v.  Gilman,  44  Conn.  461;  Prescott  v.  Pitts,  9  Mass.  376; 
Heady  v.  State,  60  Ind.  316. 

"  State  v.  Scott,  12  Ind.  529. 

n  White  v.  Moe,  19  Ohio  St.  37. 


184  SURETYSHIP  AND  GUARANTY.  (Ch.  10 

no  injustice  to  the  estate  his  sureties  are  not  liable;77  or  if  his 
acts  were  performed  at  the  request  of  the  parties  in  interest.78 

'  §  251.  Same  Person  Administrator  of  One  Estate  and 
Executor  of  Another. — One  person  can  be  the  administrator 
of  one  estate  and  executor  of  another.  In  such  case  the  liability 
of  his  sureties  may  be  complicated.  But  as  a  general  rule,  one 
set  of  sureties  are  not  liable  for  the  defaults  as  to  the  other 
estate.  So  the  sureties  on  his  administrator's  bond  do  not  incur 
any  liability  in  respect  to  his  acts  as  executor  of  the  other  estate, 
though  the  testator  and  the  intestate  were  partners  in  business. 
Such  relation  does  not  affect  the  right  of  the  creditor  of  the  in- 
testate to  have  his  separate  estate  applied  to  the  payment  of  his 
individual  debts,  and  does  not  make  the  sureties  on  the  adminis- 
trator's bond  liable  for  waste  committed  by  him  as  executor.79 
But  if  one  estate  is  indebted  to  the  other,  the  waste  of  the  debtor 
estate,  instead  of  paying  over  to  the  creditor  estate,  makes  the 
sureties  of  the  creditor  estate  liable  for  such  default,80  because 
the  debtor  estate  was  assets  in  his  hands  to  pay  the  creditor 
estate. 

§  255.  Executor  or  Administrator  Acting  in  Other  Fi- 
duciary Capacity. — An  executor  or  administrator  often  be- 
comes a  trustee  or  guardian  of  parties  interested  in  the  estate, 
and  it  may  become  difficult  to  place  the  liability  on  the  two  sets 
of  sureties.  The  general  rule  is  the  administrator's  or  execu- 
tor's bond  only  covers  his  duties  acting  in  that  capacity,  and  not 
those  which  are  in  another  fiduciary  character.81  Thus,  where 
the  administrator  is  also  guardian,  the  law  will  adjudge  the 
ward's  portion  of  the  property  then  in  his  hands  to  be  in  his 
possession  in  the  capacity  of  guardian  after  the  time  limited  by 
law  for  the  settlement  of  the  estate,  whether  a  final  account  has 

"Rison  v.  Young,  7  Martin.  N.  S.  298;  State  v.  Smith,  68  Mo.  641. 

"  Brazer  v.  Clark,  5  Pick.  9fi ;  Howes  v.  O'Connor,  9  las.  Civ.  App.  454. 

Tw  Norman  v.  Buckner,  135  U.  S.  500. 

"Morrow  v.  Penton,  8  Lei^h.  54, 

"Bell  v.  People,  04  Til.  230. 


§    256,  257)  JUDICIAL    SURETIES  185 

been  passed  upon  by  the  proper  court  or  not,  upon  the  principle 
that  what  the  law  has  enjoined  upon  him  to  do,  it  shall  be  consid- 
ered as  done,  and  from  that  time  he  holds  the  ward's  proportion 
of  the  property  by  operation  of  law  in  that  character  into  which 
he  would  be  entitled  to  receive  it  upon  the  final  completion  of  his 
trust  as  executor  or  administrator ;  by  operation  of  law  there  was 
a  transmutation  of  the  same  to  him  as  guardian,  and  he  no 
longer  holds  the  same  as  administrator  or  executor.82  But  in 
other  jurisdictions  it  is  held  that  until  the  administrator  or  exec- 
utor has  rendered  an  account  or  done  some  act  to  indicate  that  he 
has  transferred  the  property  from  himself  in  the  one  capacity  to 
himself  in  the  other  character,  he  acts  as  executor  or  adminis- 
trator, and  his  sureties  are  therefore  liable  accordingly.83 

If  the  bond  covers  all  of  the  duties  imposed  by  the  law,  then 
the  sureties  are  liable  for  the  faithful  performance  of  the  prin- 
cipal's duties  in  their  fiduciary  trust  unless  contrary  to  statute.84 

§  256.  Failure  to  Return  Inventory  or  to  Account. — 
If  the  administrator  or  executor  fails  to  return  an  inventory  as 
specified  by  law,  he  is  in  default  for  which  his  sureties  are 
liable.85  The  extent  of  the  liability  for  a  breach  of  the  condi- 
tion to  file  an  inventory,  is  the  amount  that  may  be  found  equi- 
tably due  to  any  one  who  is  injured  thereby.86  If  no  damages 
result,  then  there  is  no  injury  and  no  recovery  can  be  had.87 

§  257.  Release  of  Sureties. — The  sureties  on  an  adminis- 
trator's or  executor's  bond  will  be  released  whenever  their  liabil- 

8,Bell  v.  People,  94  111.  230;  Taylor  v.  Delbois,  4  Mason,  131;  Pratt  v. 
Northam,  5  Mason,  95;  Watkins  v.  Shaw,  2  Gill  &  J.  (Md.)  220;  Cranson 
v.  Wilsey,  71  Mich.  356;  White  v.  Ditson,  140  Mass.  351;  Woolley  v.  Price, 
86  Md.  176. 

83  Cluff  v.  Day,  124  N.  Y.  460;  Potter  v.  Ogden,  136  N.  Y.  384;  Gilmer  v. 
Baker   24  W.  Va.  72. 

"State  v.  Wilmer,  65  Md.  178;  Walker  v.  Patillo,  7  Lea,  449. 

"People  v.  Hunter,  89  111.  392;  Forbes  v.  McHugh,  152  Mass.  412; 
Walker  v.  Hall,  1  Pick.  20;  State  v.  Scott,  12  Ind.  529;  Sherwood  v.  Hill, 
25  Mo.  391;  Mighton  v.  Dawson,  38  Ohio  St.  650;  Commonwealth  v. 
Bryan,  8  Serg.  &  R.  128. 

"State  v.  French,  60  Conn.  478. 

"Reynolds  v.  Reynolds,  11  Ala.  1023;  State  v.  Gregory,  119  Ind.  503. 


186  SURETYSHIP  AND  GUARANTY.  (Ch.  10. 

ity  is  changed  or  increased  without  their  assent.  Thus,  a  secret 
agreement  between  the  distributee  of  an  estate  and  the  adminis- 
trator thereof,  that  the  administrator  may  use  the  fund  in  his 
private  business,  operates  to  discharge  the  sureties  upon  his 
bond.88  The  principal  has  no  right  to  convert  the  assets  to  his 
private  use,  nor  to  speculate  with  them,  nor  to  invest  them  in 
trade  or  manufacturing  business,  either  upon  his  own  account ' 
or  that  of  the  estate.  If  he  does  he  is  liable;  and  if  the  bene- 
ficiary agrees  to  such  maladministration,  the  sureties  are  re- 
leased.89 Any  alteration  of  the  bond  without  the  sureties'  con- 
sent will  discharge  them.90  A  discharge  of  the  principal  will 
also  discharge  his  sureties.91  And  the  re-appointment  of  a  re- 
signing administrator  with  new  bond  will  discharge  the  sureties 
on  his  first  bond.92  Sureties  are  generally  liable  up  to  the  time 
of  the  discharge  of  their  principal  ;93  but  if  the  discharge  is 
through  fraud,  neither  the  principal  or  surety  is  relieved  from 
liability.94 

§  258.  When  Eight  of  Action  Arises  Against  Sureties. 
— It  is  the  general  rule  that  the  liability  of  sureties  arises  on 
an  administrator's  or  executor's  bond  after  default  of  their  prin- 
cipal has  been  fixed,  and  then  only  under  the  terms  of  the  obli- 
gation entered  into  by  them.95  But  in  some  jurisdictions,  gen- 
erally controlled  by  statute,  it  is  not  essential  to  a  right  of 
recovery  on  such  bond  that  devastavit  shall  have  been  estab- 
lished against  the  administrator  or  executor.96 

"Rutter  v.  Hall,  31  111.  ~pp.  647. 

"  Ward  v.  Tinkham,  65  Mich.  695. 

*°  Howe  v.  Peabody,  2  Gray,  556. 

n  People  v.  Lott,  27  111.  215. 

"  Steele  v.  Graves,  68  Ala.  17.      See,  also,  Veach  v.  Rice,  131  U.  S.  293. 

"Shelton  v.  Cureton,  3  McCord  L.  (S.  Car.)  412;  Potter  v.  Ogden,  136 
N.  Y.  384. 

M  Pollock  v.  Cox  (Ga.),  34  S.  E.  Rep.  213. 

"Grady  v.  Hughes,  80  Mich.  184;  Choate  v.  Jacobs,  136  Mass.  297; 
Potter  v.  Ogden,  136  N.  Y.  384;  Dawson  v.  Dawson,  25  Ohio  St.  443;  Boyd 
v.  Commonwealth,  36  Pa.  St.  355. 

"TucKer  v.  People,  87  111.  76;  State  v.  Johnson,  7  Blackf.  (Ind.)  520; 
State  v.  Shelby,  75  Mo.  482;  Morgan  v.  West.  43  C.a.  275;  Clarkson  v.  Com- 
monwealth, 2  J.  J.  Marsh.  19;  Francis-v— .Northcote.  6  Tex.  185. 


§    259)  JUDICIAL    SURETIES.  187 

Such  action  may  be  brought  by  a  creditor  of  the  estate,  by  a 
legatee,  distributee,  or  other  interested  person  in  the  assets  who 
has  been  injured  by  the  default  of  the  principal.97 

An  administrator  de  bonis  non  cannot  sue  at  common  law  on 
a  bond  of  his  predecessor.98  But  this  rule  has  been  changed  by 
statute  in  some  jurisdictions,  so  now  such  principal  can  sue  at 
law  his  predecessor.99 

§  259.  Sureties  of  Guardian — General  Liability. — It  is 
the  duty  of  sureties  on  a  guardian's  bond  to  make  inquiries  and 
to  see  that  their  principal  discharges  his  obligations  as  guardian, 
whether  he  be  solvent  or  insolvent.100  Because  the  object  of  re- 
quiring a  bond  with  sureties  is  to  protect  the  ward  from  the 
fraud  and  dishonesty  of  his  guardian,  no  less  than  against  his 
insolvency ;  to  allow  the  sureties  to  escape  liability  from  the  very 
fraud  of  their  principal  which  he  was  under  contract  obligation 
not  to  commit  would  be  to  render  such  unavailing  as  a  protec- 
tion to  the  ward  and  defeat  the  purpose  of  the  law  in  requiring 
guardians  to  give  bond  with  security.101 

Guardianship  is  a  personal  trust.  The  guardian  must  exer- 
cise at  least  ordinary  and  reasonable  care,  and  make  the  property 
of  ihe  ward  productive,  and  this  duty  is  a  personal  one,  which 
cannot  be  delegated,  and  for  the  performance  of  which  his  sure- 
ties are  answerable.  So  the  guardianship  terminates  with  the 
death  of  the  guardian.  The  duty  to  account  continues  and  the 
sureties  cannot  discharge  themselves  only  by  showing  that  in 
accordance  with  the  terms  of  the  bond,  the  principal,  during  the 
time  the  estate  was  committed  to  his  care,  has  faithfully  admin- 
istered his  trust,  They  are  bound  to  answer  for  his  mismanage- 
ment of  the  estate  up  to  the  time  of  his  death,  and  to  account 

"State  v.  Scott,  12  Ind.  529;  Rawson  v.  Piper,  36  Me.  98;  Goodkin  v. 
Hoit,  3  N.  H.  392 ;  Boyle  v.  St.  John.  28  Hun,  454. 

••Marsh  v.  People,  15  111.  284;  Lucas  v.  Donaldson,  117  Ind.  139;  Douglas 
y.   Day,    28    Ohio   St.    175. 

••Marsh  v.  People,  15  111.  284;  Palmer  v.  Pollock,  26  Minn.  433. 

100  Forrester  v.  Steele,  46  Md.  154. 

101Gillett  v.  Wiley,   126  111.  310. 


188  SURETYSHIP  AND  GUARANTY.  (Ch.  10 

when  called  upon  to  do  so,  for  any  damages  resulting  to  his 
ward  or  his  ward's  estate  in  consequence  of  the  mismanagement 
of  the  ward's  property  during  the  lifetime  of  the  guardian.102 

If  a  guardian  is  appointed  by  a  court  without  jurisdiction, 
and  gives  a  bond,  and  then  takes  possession  of  the  ward's  prop- 
erty, his  sureties  are  liable,  as  on  a  voluntary  bond,  for  the 
assets  converted  by  the  guardian.103 

A  guardian  and  his  sureties  are  accountable  for  commission 
of  defaults,  and  for  omission  of  duty.  Hence,  they  are  not  only 
liable  for  money  and  assets  collected  and  taken  possession  of  by 
the  guardian,  but  also  for  money  and  assets  which  he  could 
secure  by  proper  or  ordinary  diligence.104  If  the  guardian  con- 
verts the  ward's  money  to  his  own  use  it  is  a  breach  of  the  condi- 
tion of  the  bond  for  which  his  sureties  are  responsible.105 

§  260.  Giving  Additional  Security. — Whenever  a  second 
bond  is  required,  not  at  the  instance  of  the  surety  on  the  first, 
but  at  the  instance  of  one  of  the  parties,  and  is  intended  as  a 
mere  additional  or  cumulative  bond,  and  not  subsidiary,  no  dis- 
charge of  the  surety  on  the  first  bond  takes  place.  Such  bonds 
are  generally  required  when  additional  money  is  to  come  to  the 
hands  of  the  guardian,  such  as  pension  money  or  money  from 
another  State,  or  a  legacy  to  the  ward.106  In  most  jurisdic- 
tions where  such  additional  bond  is  required,  the  sureties  in 
the  new  bond  are  considered  as  co-sureties  with  those  on  the  first 
bond,  and  equally  liable  with  them  for  the  whole  guardianship 
from  its  creation.107  And  if  there  are  sureties  in  different 
amounts,  they  are,  as  between  themselves,  compellable  to  con- 
tribute in  proportion  to  the  penalties  of  their  respective  bonds.108 

Thus,  under  the  general  rule  where  a  resident  guardian  is 
required  to  give  an  additional  bond  for  the  proceeds  coming  to 

101  Garrett  v.  Reese,  99  Ga.  494;  Ames  v.  Dorrok.  76  Miss.  187. 
""TTazelton  v.  Douglas.  97  Wis.  214;  United  States  v.  Tingey,  5  Pet.  115. 
'"Ames  v.  Williams,  74  Miss.  404. 

"*  Irwin  v.  Backus.  25  Cal.  221  ;  Deegan  v.  Deegan,  22  Nev.  185. 
10,BuBh  v.  State,  19  Ind.  App.  523;  Middleton  v.  Hensley  (Ky.),  52  S.  W. 
Rep.  974. 


§    260)  JUDICIAL    SUKETIES.  189 

his  hands  from  a  foreign  administrator,  the  second  bond  is  not 
subsidiary  to  the  first,  but  is  primary  security,  like  the  first,  for 
money  received.  The  giving  of  the  second  did  not  annul  the 
first;  both  continue,  and  the  two  sets  of  sureties  are  liable  for 
the  guardian's  defaults;109  and  such  bond  is  additional  and 
cumulative,  and  for  the  entire  guardianship,  and  the  obligors 
are  liable  for  the  whole  maladministration  of  the  guardian.110 
In  the  absence  of  affirmative  proof  to  that  effect,  there  can  be 
no  presumption  that  the  parties,  or  either  of  them,  would  be 
benefited  by  discharging  the  sureties  on  the  first  bond  merely 
because  a  new  bond  was  required  and  given.111 

But  there  is  another  class  of  cases  which  are  not  wholly  in 
accord  with  this  doctrine.  So  it  is  held  that  the  liability  of  a 
surety  on  a  new  bond  executed  by  a  guardian  does  not  extend  to 
previous  defaults  of  his  principal.  Thus,  where  a  guardian 
had  converted  his  ward's  money  before  giving  the  second  bond, 
the  sureties  on  the  latter  bond  are  not  liable  for  such  conver- 
sion;112 that  is,  sureties  on  the  second  bond  are  not  made  liable 
for  past  defaults  of  the  principal  unless  the  bond  so  prescribes 
or  the  statute  makes  them  responsible.113  The  surety  on  the 
second  bond  is  not  liable  unless  the  obligation  indicates  the  as- 
sumption of  liability  for  past  defalcations.114     But  it  is  held, 

10ILoring  v.  Bacon,  3  Cush.  465;  Forbes  v.  Harrington,  171  Mass.  386; 
Ammons  v.  People,  11  111.  6;  State  v.  Hull,  53  ^liss.  626;  McGlothlin  v. 
Wyatt,  1  Lea,  717;  Hutchcraft  v.  Shrout,  1  Mon.  206;  Brooks  v.  Whitmore, 
142  Mass.  39;  Stevens  v.  Tucker,  87  Ind.  109;  Commonwealth  v.  Cox,  36 
Pa.  St.  442;  Allen  v.  State,  61  Ind.  268. 

10SDeering  v.  Winchester,  2  Bos.  &  P.  270,  1  Cox,  318;  Pendlebury  v. 
Walger,  4  Younge  &  Coll.  441;  Loring  v.  Bacon,  3  Cush.  465;  Jones  V. 
Hays,  3  lied.  L.  (N.  Car.)  502;  Jones  v.  Blanton,  6  Ired.  L.  (N.  Car.)   115. 

109  State  v.  Mitchell,  132  Ind.  461;  Baum  v.  Lyman,  72  Miss.  932. 

110  Douglass  v.  Kessler,  57  Iowa,  63;  Clark  v.  Wilkinson,  59  Wis.  543. 
See,  also,  Pinkstaff  v.  State,  59  111.  148;  Ennis  v.  Smith,  .4  How.  400. 
Compare  Sayers  v.  Cassell,  23  Gratt.  525. 

111  Stewart  v.  Johnson,  87  Ga.  97. 

mLowry  v.  State,  64  Ind.  421;  Williams  v.  State,  89  Ind.  570. 
1,4  State  v.  Jones,  89  Mo.  470. 

mFarrar  v.  United  States,  5  Pet.  374;  United  States  v.  Boyd,  15  Pet. 
206;  State  v.  Shackleford,  56  Miss.  648;  Sebastian  v.  Bryan,  21  Ark.  447. 


190  SURETYSHIP    AND    GUARANTY.  (Ch.  10 

if  the  guardian  has  in  his  possession  the  money  converted  before 
the  giving  of  the  second  bond,  the  sureties  on  the  second  bond  are 
liable  for  such  default.115 

In  some  jurisdictions,  periodical  statutory  bonds  are  given 
and  required,  and  such  bonds  are  held  to  be  cumulative  under 
the  statute,  though  contribution  should  be  in  inverse  order  to 
that  of  the  execution.116 

§  261.  Guardian  Selling  Real  Estate. — In  most  juris- 
dictions the  general  bond  does  not  cover  sales  made  of  the  ward's 
real  estate.  In  such  case  the  guardian  is  required  to  give  a  new 
bond  to  answer  for  the  proceeds  of  such  sales.  The  duties  of 
the  administrator  and  guardian  are  prescribed  by  statute,  and 
the  trust,  created  by  their  appointment  extends  only  to  the  duties 
imposed  by  statute ;  and  where  they  file  bonds  and  qualify  and 
take  upon  themselves  the  administration  of  the  personal  assets 
of  such  trusts,  the  sureties  on  the  bonds  filed  are  liable  only  for 
the  faithful  accounting  of  such  personal  assets.  So  where  they 
apply  to  and  obtain  an  order  of  court  to  sell  or  rent  real  estate, 
and  file  an  additional  bond  as  a  condition  precedent  to  such 
sales  or  renting,  the  sureties  on  such  bonds  are  alone  liable  for 
the  funds  resulting  therefrom,  and  the  sureties  on  the  gen- 
eral bond  are  not  liable  for  such  sales.117  The  sureties  on  the 
first  or  general  bond  of  the  guardian  are  not  liable  for  real  estate 
sales  by  a  guardian  under  the  second  bond.118 

And  so  the  sureties  on  the  last  bond  are  liable  for  failure  of 
their  principal  to  carry  out  specific  objects  for  which  such  sale 
was  authorized.119 

115  Parker  v.  Medsker,  80  Ind.  155. 

1,8  Crook  v.  Hudson,  4  Lea,  448;  Jamison  v.  Cosby,  11  Humph.  273. 

wWorgang  v.  CHpp,  21  Ind.  11!>:  Fester  v.  Hill,  42  W.  Va.  611  ;  People 
v.  Hoffman,  182  III.  300:   Findley.  42  W.  Va.  372. 

""State  v.  Potorman,  66  Mo.  App.  2.r>7 :  Fay  v.  Taylor.  11  Mot.  529; 
Blauser  v.  Diehl,  95  Pa.  St.  350;  Bunce  v.  Bunce,  69  Iowa,  333;  Colburn  v. 
State.  47  Ind.  310;  Morris  v.  Cooper,  35  Kan.  156.  Compare  Hart  v. 
Striblinfr.  21   Fin.  136. 

"•  Mattoon  v.  Cowing,  13  Gray,  387;  McKim  v.  Morse,  130  Mass.  430. 


§262,263)  JUDICIAL    SURETIES.  191 

§  262.  Discharge  of  Surety. — So  long  as  the  guardian  con- 
tinues in  his  official  capacity,  his  sureties  can  only  be  discharged 
from  liability  by  applying  to  the  court  and  complying  with  the 
provsions  of  the  law.1-0  And  such  discharge  dates  from  the  time 
of  the  approval  of  the  new  bond,  when  the  prior  surety's  liability 
ceases  as  to  subsequent  acts  of  the  guardian.121  And  the  dis- 
charge of  one  surety  releases  the  co-surety  unless  he  remains  a 
surety  by  consent  or  agreement.122 

§  263.  Termination  of  Surety's  Liability. — The  surety's 
liability  terminates  when  the  guardian  has  faithfully  discharged 
his  duties  and  made  an  accounting  to  the  proper  court  and  been 
released.  But  the  sureties'  liability  is  not  discharged  by  the 
expiration  of  the  guardianship  until  a  final  settlement  and 
proper  accounting;123  nor  is  the  liability  extinguished  by  the 
death  of  the  surety,  for  then  his  estate  is  responsible  in  his 
place,124  and  his  representatives  must  be  made  a  party  to  a 
suit.125  And  unless  there  is  a  statute  controlling  the  time  to 
bring  suit,126  the  liability  of  the  surety  continues  against  him 
and  his  personal  representatives  until  the  statute  of  limitations, 
as  in  other  cases,  bars  the  action  on  the  bond.127  And  the  limit- 
ation begins  to  run  from  the  time  when  the  guardian  settles  his 
account  in  the  proper  court,  and  not  from  the  date  of  his  in- 
formal accounting  with  the  ward ;  the  law  directs  that  it  be 
reckoned  from  the  guardian's  discharge.128  The  liability  is 
limited  to  what  the  guardian  has  legally  done  with  diligence  dur- 
ing his  term  of  office  and  not  for  anything  done  thereafter.129 

""Rush  v.  State,  19  Ind.  App.  523. 

121  Hammond  v.  Beasley,  15  Lea,  CIS;  Dempsey  v.  Fenno,  16  Ark.  491; 
State  v.  Page,  62  Ind.  209. 

1J2Tyner  v.  Hamilton,  51  Ind.  250;  Frederick  v.  Moore,  13  B.  Mon.  470; 
Spencer  v.  Houghton,  68  Cal.  82. 

113  Yost  v.  State,  80  Ind.  330 ;  Higgins  v.  State,  87  Ind.  282. 

"4  Voris  v.  State,  47  Ind.  345. 

"•Lynch  v.  Pvotan,  39  111.  14. 

"•State  v.  Hughes,  15  Ind.   104:   Loring  v.  Alline,  9  Cush.  68. 

wBonhara  v.  People,  102  111.  434;  Ragland  v.  Justices,  10  Ga.  65. 

"BMarlo\vxJLaj^YA-68  Tex.  154,.;  Nunnery  v.  Day,  64  Miss.  457. 

"•Ordinary  v.  Smith,  55  Ga.  15. 


192  SURETYSHIP  AND  GUARANTY.  (Ch.  10 

Thus,  money  paid  to  the  guardian  after  the  ward  reaches  his 
majority,  does  not  make  the  surety  liable  for  any  malfeasance  of 
such  discharged  guardian.130 

§  264.  When  Action  Upon  the  Bond  Accrues. — The  gen- 
eral rule  is  that  action  cannot  be  brought  upon  the  bond  until 
the  amount  of  the  guardian's  liability  has  been  ascertained  by 
a  court  of  competent  jurisdiction  at  his  final  settlement.131  But 
this  general  rule  has  been  changed  in  many  jurisdictions,  and 
whenever  the  condition  of  the  bond  is  violated,  suit  may  be 
brought  on  such  bond  and  prosecuted  to  final  judgment  against 
the  guardian  or  sureties  on  his  bond,  without  first  obtaining 
judgment  against  the  guardian  alone.132 

§  265.  Estoppel  by  Judgment  Against  Principal. — An 
order  from  the  probate  court  finding  the  amount  due  from  the 
guardian  to  the  ward  is  conclusive  upon  the  guardian  and  his 
sureties  on  the  bond,  and  can  only  be  impeached  for  fraud  or 
mistake.133  The  general  rule  is  that  the  surety  is  concluded  by 
the  judgment  against  his  principal.134  However,  in  some  States 
such  judgment  is  only  conclusive  against  the  guardian,  and 
prima  facie  only  against  the  surety.135 

A  settlement  with  the  ward  after  he  reaches  his  majority,  if  it 

13f  Chapin  v.  Livermore,  13  Gray,  561;  Commonwealth  v.  Pray,  125 
Pa.  St.  542. 

w  Perkins  v.  Stimmel,  114  N.  Y.  359;  Gillespie  v.  See,  72  Iowa,  345; 
Bisbee  v.  Gleason,  21  Neb.  534;  Murray  v.  Wood,  144  Mass.  195;  Shollen- 
berger's  Appeal,  21  Pa.  St.  337;  Forrester  v.  Vason,  71  Ga.  49;  Kugler  v. 
Prien,  G2  Wis.  248. 

"•Bonham  v.  People,  102  111.  434;  State  v.  Slevin,  93  Mo.  253;  Wolfe  v. 
State,  59  Miss.  338;  Call  v.  Ruflin,  1  Call  (Va.),  333;  Sage  v.  Hammonds, 
27  Gratt.  651. 

133  Ryan  v.  People,  165  111.  143;  Gillett  v.  Wiley,  126  111.  310;  Martin  v. 
Porter,  32  App.  Div.  602 ;  Jacobson  v.  Anderson,  72  Minn.  426. 

1M  Commonwealth  v.  Julius,  173  Pa.  St.  322;  Deegan  v.  Deegan,  22  Nev. 
lH.r>;  Commonwealth  v.  Rhoads,  37  Pa.  St.  60;  Botkin  v.  Kleinschmidt,  21 
Mont.  1  ;  Braiden  v.  Mercer,  44  Ohio  St.  339. 

136  State  v.  Hull,  53  Miss.  626 ;   Weaver  v.  Thornton,  63  Ga.  655. 


§  2G6-268)  judicial  sureties.  193 

be  fair  and  full,  is  sufficient  to  satisfy  the  bond,138  though  such 
settlement  may  be  attacked  by  the  sureties.137 

§  266.  Estoppel  by  Recitals  in  the  Bond. — Sureties  upon 
a  guardian's  bond  are  bound  by  the  recitals  in  the  instrument, 
and  are  estopped  to  deny  that  their  principal  had  in  fact  been 
appointed  guardian  of  the  ward.138  Because  by  executing  the 
bond  the  sureties  obtain  for  their  principal  the  possession  and 
control  of  the  ward's  property,  and  cannot  therefore  be  permit- 
ted to  escape  liability  to  account  for  him  if  necessary,  by  deny- 
ing the  recitals  in  the  bond.139  Although  the  appointment  is 
irregular,  being  made  in  the  wrong  county,  the  principal  and 
sureties  are  estopped  by  the  recitals  in  the  bond  to  raise  the 
objections  that  the  bond  is  illegal.140 

§  267.  Joint  Guardians. — In  case  two  or  more  guardians 
are  jointly  appointed  for  the  same  ward,  and  execute  a  joint 
bond  for  the  faithful  performance  of  their  trust,  each  of  them  is 
security  upon  the  bond  for  the  other,  and  both  they  and  their 
sureties  upon  the  bond  are  responsible  for  devastavit  committed 
by  either.141  And  one  of  the  joint  guardians  may  bring  suit 
against  the  sureties  on  the  joint  bond  for  a  default  of  his  co- 
guardian  and  recover  the  full  amount  of  the  damages  caused  by 
such  maladministration,  from  the  sureties;142  and  the  sureties 
have  their  remedy  against  such  plaintiff  or  principal,  in  his 
indivdual  capacity,  for  indemnity.143 

§  268.  Joint  Bond  Instead  of  Several. — The  bond  given 

1M  Davenport  v.  Olmstead,  43  Conn.  67. 

137  State  v.  Hostes,  61  Mo.  544. 

158  Bray  v.  State,  78  Ind.  68;  Havenstein  v.  Gillespie,  73  Miss.  742; 
Norton  v.  Miller,  25  Ark.  108;  Iredel  v.  Barbee,  9  Ired.  L.  (N.  Car.)  230; 
Fridge  v.  State,  3  Gill  &  J.  (Md.)  103;  Shroyer  v.  Richmond,  16  Ohio  St. 
455;  Hines  v.  Mullins,  25  Ga.  696;  Williamson  v.  Woodman,  73  Me.  163. 

""Shroyer  v.  Richmond.  16  Ohio  St.  455;  Fridge  v.  State,  3  Gill  &  J. 
103. 

140  Norton  v.  Miller,  25  Ark.  108. 

1U  Freeman  v.  Brewster,  93  Ga.  648. 

m  Boyle  v.  St.  John,  28  Hun,  454;  Sperb  v.  McCoun,  110  N.  Y.  605. 

ltt  Boyle  v.  St.  John,  28  Hun,  454;  Sperb  v.  McCoun,  110  N.  Y.  605. 

13 


.   -  SURETYSHIP  AXD  GUARANTY.  (Cll.  10 

by  the  guardian  will  be  enforced  so  far  as  it  is  consistent  with, 
the  policy  of  the  law,  though  it  does  nut  conform  to  it.  Thus,  a 
guardian's  bond  securing  the  estates  of  two  or  more  minors-  in 
joint  form  and  particularizing  the  duties  to  be  performed  by 
the  guardian,  is  valid,  though  not  in  conformity  with  the  stat- 
ute.144 So  where  the  guardian  of  several  minors  gives  but  one 
bond,  the  sureties  cannot  escape  liability  in  an  action  on  the 
bond  on  the  ground  that  it  is  not.  such  a  bond  as  the  law  requires, 
in  that  it  is  joint  instead  of  several  as  to  the  obligees.145 

§  269.  Extent  of  Surety's  Liability. — Of  course  the  sure- 
ties may  be  bound  to  the  extent  of  the  penalty.  But  the  recov- 
ery on  the  bond  may  so  far  exceed  the  amount  of  the  penalty  as 
is  necessary  to  cover  interest  upon  the  penalty  from  the  date  of 
the  breach.146  Because  when  the  surety  neglects  to  discharge 
the  liability  against  him.  it  is  but  reasonable  that  he  should  com- 
pensate the  obligee  for  delay  by  paying  legal  interest  from  such 
date.147 

§  270.  Revival  of  Liability  by  Surety. — At  common  law 
a  verbal  acknowledgment  is  sufficient  to  revive  a  liability  barred 
by  the  statute  of  limitations.148  So  where  the  statute  does  not 
deny  the  right  to  revive  by  a  verbal  promise,  a  surety  on  a 
guardian's  bond  can  revive  his  liability  by  a  verbal  promise,  that 
he  will  pay  whatever  fund  is  due  from  the  guardian.  The 
duty  rests  upon  a  surety  to  see  that  his  principal  performs-  the 
contract,  and  the  guaranty  subsists  as  a  moral  obligation  after 
:'  limitations  has  run  against  the  right  to  enforce  it, 
which  obligation  will  support,  a  new  promise  by  the  surety  to 
answer  for  the  principal's  default.149 

§  271.  Receiver's  Bond — Liability  of  Sureties. — There 

,M  Ordinary  v.   Heishon.   42   N.   J.   L.    15. 

'"Dc-epan  v.  Herman.  22  Nev.   185;    Pursley  v.  Hayes.  22  Iowa.  11. 

"•Jamefl  v.  State.  65  Ark.  415. 

,4T  Brainard  v.  Jones,   18  N.  V.  35;   Wynian  v.  Robinson.  7:>  Mr.  384. 

■'*  Perkins  v.  Cheney,  114  Mich.  :>f>7. 

"  I'e-rkins  v.  Cheney,  114  Mich.  567. 


§    272)  JUDICIAL    SURETIES.  195 

must  be  an  accounting,  settling'  the  receiver's  account,  before  an 
action  upon  his  bond  can  be  instituted.150  After  the  account  is 
adjudged  and  approved  by  the  court,  and  the  receiver  is  ordered 
to  pay  the  fund  in  his  hands  into  court,  or  to  the  person  entitled 
thereto,  a  failure  to  comply  with  such  order  renders  himself  and 
his  sureties  liable.151 

If,  however,  the  receiver  dies  and  it  thus  becomes  impossible 
to  pursue  the  ordinary  course  against  him,  then  the  remedy  is 
against  the  sureties  on  the  bond.152 

§  272.  Eight  of  Action  Against  Surety  on  Receiver's 
Bond. — The  liability  of  sureties  on  a  receiver's  bond  can  gen- 
erally be  enforced  only  by  action  on  the  bond  in  a  common  law 
court,  where  they  can  make  defense  on  trial  by  a  jury.153  So 
where  the  creditors  institute  proceedings  by  the  common  law 
action  of  debt  to  recover  their  claims  and  obtain  an  order  for 
their  payment,  a  mere  summary  order  to  show  cause  cannot 
be  enforced  though  no  defense  was  made,  as  the  suit  must  be 
tried.154  The  sureties  cannot  be  summarily  proceeded  against 
by  an  order  of  court  to  show  cause,  unless  they  have  a  part  of 
the  trust  fund  in  their  hands,  and  then  only  to  the  extent  of  such 
funds.155  Where  judgment  has  been  recovered  against  a  re- 
ceiver he  is  not  a  necessary  party  to  an  action  against  his  sureties 
on  the  bond.156  The  annullment  of  the  appointment  of  a  re- 
ceiver who  has  acted  does  not  release  his  sureties  from  lia- 
bility.157 But  he  nor  his  sureties  are  liable  on  his  bond  for 
property  not  coming  under  its  provisions.158 

180  State  v.  Gibson,  21  Ark.  146;  Bank  v.  Creditors,  86  N.  Car.  323; 
Atkinson  v.  Smith,  89  N.  Car.  72;  French  v.  Dauchy,  57  Hun,  100. 

151  Bank  v.  Creditors,  86  N.  Car.  323;  Ludgater  v.  Cannell,  3  Man.  & 
Gr.  174. 

mWeems  v.  Lat.hrnp.  42  Tp^.  207-  French  v.  Dauchy,  57  Hun,  100; 
Ludgater  v.  Cannell,  3  Man.  &  Gr.  175. 

153Thurman  v.  Morgan,  79  Va.  367. 

1MNutton  v.  Isaacs,  30  Gratt.  740;  Black  v.  Gentery,  119  N.  Car.  502. 

165  Bank  v.  Creditors,  86  N.  Car.  323 ;  Liedenback  v.  Denklespiel,  1 1  Lea, 
297;  Atkinson  v.  Smith,  89  N.  Car.  72. 

1BS  Black  v.  Gentery,  119  N.  Car.  502. 

107  Thompson  v.  Denner,  16  App.  Div.  160. 

168Ayers  v.  Hite   (Va.),  34  S.  E.  Eep.  44. 


196  SUEETYSHIP  AND  GUAEANTY. 


(Ch.  10 


§  273.  When  Sueety  is  Concluded  by  Deceee  of  Couet. 
— After  due  proceedings  and  full  hearing  by  the  court,  a 
decree  made  against  the  receiver  is  competent  evidence  both  of 
a  breach  of  the  bond  and  of  the  amount,  for  which  the  sureties 
are  liable.159  If  the  receiver  is  entitled  to  compensation,  and 
the  amount  is  afterwards  ascertained,  his  sureties  may  petition 
the  court  to  have  the  amount  applied  to  their  indemnity,160  but 
such  amount  cannot  be  considered  until  determined.161  To  be 
concluded  by  an  accounting  in  chancery  the  surety  must  have 
due  notice  of  such  litigation.162  If  the  receiver's  bond  is  for 
the  future  the  surety  cannot  be  made  liable  for  the  past  acts  for 
which  he  has  not  covenanted.163  Sureties  are  not  liable  for  any 
defaults  or  misconduct  of  the  receiver  prior  to  the  execution  of 
the  bond  where  the  undertaking  is  that  the  receiver  shall  "hence- 
forth" faithfully  discharge  his  duties.164 

§  274.  Funds  Coming  Into  the  Hands  of  the  Re- 
ceives.— Where  funds  have  been  paid  to  a  receiver  within  the 
scope  of  his  duties,  his  sureties  are  liable  for  the  misappropria- 
tion of  such  funds.  Thus,  the  receiver's  omission  to  pay  to  him- 
self as  receiver  money  which  he  had  borrowed  of  the  company 
for  which  he  is  receiver  before  his  appointment,  is  a  breach  of 
his  bond,  for  which  his  sureties  are  liable.165  So  where  a  re- 
ceiver collects  notes  a  failure  to  account  makes  his  sureties  liable 
for  the  amount  collected.166  Wherever  the  money  received  can- 
not be  recovered  back,  his  sureties  are  liable  for  his  miscon- 
duct.167 

§  275.  Giving  a  New  Bond. — By  giving  a  new  bond  it  does 

169  Commonwealth   v.   Gould,    118   Mass.    300. 
160  Brandon  v.  Brandon,  3  DeG.  &  J.  524. 
101  Commonwealth  v.  Gould,  118  Mass.  300. 
182  Ball  v.  Chancellor,  47  N.  J.  L.  125. 
lM  Thompson  v.  MacGregor,  81  N  .Y.  592. 

,M  Bissell  v.  Saxton,  66  N.  Y.  60;  Rochester  v.  Randall,  105  Mass.  295; 
Vivian  v.  Otis,  24  Wis.  518. 

M  Commonwealth  v.  Gould,   118  Mass.  300. 
""  VVeema  v.  Lathrop,  VI  Tex.  20.7, 
""Wilde  v.  Baker,   11  Allen,  349. 


§  276, 277)  judicial  sureties.  197 

not  necessarily  discharge  the  sureties  on.  the  prior  bond.  So  an 
order  of  court  made  at  the  instance  of  one  of  the  parties  to  the 
action  for  which  a  receiver  is  appointed,  requiring  a  new  bond, 
in  the  same  sum  and  condition  of  his  existing  bond,  will  not 
operate  to  discharge  the  sureties  on  the  old  bond.  It  is  an  ad- 
ditional or  cumulative  bond,  and  is  not  substituted  for  the 
first.168 

§  276.  Extent  of  Surety's  Liability. — The  extent  of  the 
liability  of  a  surety  of  a  receiver  can  only  bo  ascertained  by  the 
terms  of  the  bond.169  Thus,  where  the  engagement  of  a  surety 
is  for  the  future,  he  cannot  be  held  liable  for  the  past  as  to  which 
he  has  not  covenanted.170  As  between  the  principal  and  the 
creditors  of  the  fund  which  is  the  receiver's  duty  to  pay  accord- 
ing to  the  order  of  the  court,  if  he  has  been  heard,  he  is  bound 
by  the  adjudication.  As  between  the  surety  and  such  creditors, 
it  is  not  the  receiver's  duty  to  pay  according  to  an  order  made 
without  the  surety's  knowledge  as  to  which  he  has  not  been  heard 
and  which  is  not  against  him  a  binding  adjudication.  Hence,  a 
judgment  against  the  principal  cannot  be  binding  upon  the 
surety  only  as  evidence  unless  by  the  terms  of  the  bond  the  surety 
contracts  to  be  bound  by  the  adjudication  against  his  princi- 
pal.171 

Whether  a  surety  is  liable  for  interest  on  the  penalty  after 
breach  is  in  the  discretion  of  the  court  upon  the  consideration 
of  all  the  facts  and  circumstances.172  The  surety  is  liable  for 
the  costs  for  which  the  receiver  is  liable.173 

§  277.  Liability  of  Surety  on  Assignee's  Bond. — The  lia- 
bility of  a  surety  on  an  assignee's  bond  will  depend  upon  the 

168  Stewart  v.  Johnston,  87  Ga.  97. 

169  Ross  v.  Williams,  11  Heisk.  410. 

""Bissell  v.  Saxton,  66  N.  Y.  60;  United  States  v.  Giles.  0  CYanch,  212; 
Farrar  v.  United  States,  5  Pet.  373. 

171  Thomson  v.  MacGregor,  81  N.  Y.  592.  See,  also,  Scofield  v.  Churchill, 
72  N.  Y.  565. 

17JIn  re  Herrick's  Minors,  3  Ir.  Ch.,  X.  S.  1S3.  See.  also,  Dawson  v. 
Haynes,  2  Russ.   466;   State  v.  Blakemore.   7   Heisk.   657. 

173Mannsell  v.  Egan,  8  Ir.  Eq.  372;   9  Ir.  Eq.  283. 


198  SURETYSHIP    A^D    GUARANTY.  (Cll.  10 

terms  of  the  bond,  and  will  not  be  extended  by  construction.174 
And  when  the  bond  is  a  good  common-law  bond,  and  not  con- 
trary to  statute  or  public  policy,  it  will  be  valid  against  the 
assignee  and  his  sureties,175  though  not  wholly  complying  with 
the  statute.  The  sureties  are  liable  for  the  proper  administra- 
tion of  the  funds  which  come  into  the  hands  of  the  assignee;176 
their  liability  is  the  same  as  the  assignee  in  the  scope  of  his 
duties.177 

§  278.  Estoppel  of  Surety. — The  sureties  on  the  bond  of 
an  assignee  are  concluded  by  the  finding  of  the  court  as  to  the 
amount  to  be  accounted  for  by  the  receiver.178  The  final  decree 
of  the  court  upon  a  full  hearing  concludes  the  sureties  on  the 
assignee's  bond,  as  to  a  collateral  attack,179  but  the  surety  may 
appeal  from  the  order  of  the  court,  but  such  order  cannot  be  at- 
tacked collaterally.180 

§  279.  Giving  Xew  Bond. — If  the  court  upon  satisfactory- 
grounds  requires  a  new  bond  to  be  given  by  the  assignee,  this 
does  not  release  the  sureties  on  the  old  bond.  Thus,  a  court 
finding  the  assignee  in  insolvency  proceedings  is  disposing  of 
the  funds  of  the  estate  without  the  order  of  the  court,  and  being 
satisfied  that  the  sureties  on  the  assignee's  bond  are  insolvent, 
may  require  an  additional  bond  to  be  given,  which  will  only  be 
cumulative.181  And  when  the  new  bond  requires  that  the  as- 
signee shall  obey  the  orders  of  the  court  "previously  and  sub- 
sequently" entered,  the  sureties  on  the  new  bond  are  liable  upon 
the  assignee's  failure  to  obey  an  order  of  the  court  requiring  him 
to  account  for  funds  of  the  estate  which  he  had  paid  out  without 

174  Ward  v.  Stahl,  81  N.  Y.  406;  Van  Slyke  v.  Bush,  123  N.  Y.  47; 
Moulding  v.  Wilhartz,  67  111.  App.  059:   169  111.  422. 

m Andrews  v.  Ford,  106  Ala.   173. 

™  Van  Slyke  v.  Bush,  123  N.  Y.  47. 

177  PatterBon'fl  Appeal,  48  Pa.  St.  342. 

""Moulding  v.  Wilhartz,  169  111.  422:  Little  v.  Commonwealth,  48  Pa. 
St.  337. 

"•Stelle'fl  Case,  34  N.  J.  Eq.  199;  Garner  v.  Tisinger,  46  Ohio  St.  56. 

«  Moulding  v    Wilhartz,   L69   111.  422. 

1,1  Moulding  v.  Wilhartz,  169  111.  422. 


§    280,281)  JUDICIAL    STJKETIES.  199 

authority  before  the  new  bond  was  executed,  though  this  proviso 
is  not  a  condition  of  the  statutory  bond.182 

§  280.  Default  of  Assignee. — A  failure  to  comply  with  the 
order  of  the  court  makes  the  assignee  and  his  sureties  liable  upon 
the  bond.ls3  A  mere  failure  of  a  creditor  to  use  due  diligence 
in  collecting  a  claim  from  the  assignee  cannot  relieve  the 
surety;184  even  if  the  assignee  has  become  insolvent  during  the 
delay  of  the  creditor,  the  surety  is  not  released.185  If  a  judg- 
ment declares  an  assignment  void  as  to  certain  creditors,  then 
they  cannot  hold  the  sureties  of  the  assignee  liable  for  such 
funds  as  are  covered  by  the  judgment,;  because  sureties  can  be 
charged  only  when  the  case  is  brought  within  the  terms  of  their 
contract,  which  cannot  be  extended  by  construction  to  embrace 
purposes  and  objects  not  contemplated  by  the  parties.186 

§  281.  Discharge  of  Surety. — An  assignee  arid  his  sureties 
can  be  discharged  judicially  only  upon  a  regular  proceeding 
for  an  accounting,  and  the  payment  of  the  fund  according  to 
the  final  order  of  the  court,187  although  the  creditors  have  con- 
sented to  a  composition,  and  the  accounting  may  be  wholly 
formal. 18S  Under  the  Ohio  statute  the  sureties  on  the  bond  of 
an  assignee  who  has  failed  to  pay  the  fund  over  as  ordered  are 
not  joint  debtors.  So  a  compromise  to  release  one  surety  will  not 
discharge  the  others.  They  will  be  liable  for  their  proportionate 
share  of  the  debt  against  the  assignee.189 

182  Moulding  v.  Wilhartz,  169  111.  422. 

183  Oppenheimer  v.  Hamrick,  86  Iowa,  585. 

184  Taylor  v.  State,  73  Md.  208. 

185  People  v.  White,  28  Hun,  280. 

""People  v.  Chalmers,  60  N.  Y.   154,  distinguishing  People  v.  Vilas,  3% 
K.  Y.  459. 

187  In  re  Merwin,  10  Daly,  13;  In  re  Loventhal,  10  Daly,  14. 

188  In  re  Yeager,  10  Daly,  7 ;  In  re  Dryer,  10  Daly,  8. 
v   m  Walsh  v.  Miller,  51  Ohio  St.  462. 


200 


SURETYSHIP  AND  GUARANTY. 


(Ch.  11 


CHAPTER  XL 


BONDS   OF  PEIYATE  OFFICERS  AND  AGENTS. 

§  282.  Duration  of  Suretyib  BLlerLiTY. — A  surety's  lia- 
bility on  a  private  official  bftad  is  teen^rally  limited  to  a  certain 
time,  after  which  he  is  notiVaWe jot  defaults  of  the  principal. 
Thus,  when  the  bond  i»  ai\LffiiiM  one,  the  obligors  are  only 
bound  for  defaults  that  ocaijrduring  the  year  for  which  the  bond 
was  given.  Anflbv^n  inWases  where  the  officer  is  authorized  to 
hold  over  his  teitiMi^fintil  his  successor  is  elected  and  qualified, 
the  liabilityion  th^pfacial  bond  is  not  extended  beyond  the  dura- 
tion of  the  inn.  And  where  an  officer  is  chosen  for  a  term  of 
limited  duraljaj^,  and  a  bond  for  the  faithful  performance  of  his 
dyttei  is.  a^en,  the  presumption  is  that  the  sureties  only  con- 
traclfei  flprf  aithf  ulness  of  the  officer  during  that  time ;  and  the 
otlig^mon  of  the  sureties  is  not  extended  by  the  mere  fact  that 
such  crfficer  is  re-elected,  or  for  any  reason  holds  over  the  term.1 

And  where  the  appointment  of  an  agent  of  a  corporation  is 
temporary,  and  a  right  to  revoke  the  appointment  being  reserved, 
and  no  time  specified  for  its  duration,  the  liability  of  the  surety 
only  continues  until  the  appointment  is  revoked.2  Where  two 
corporations  become  consolidated  by  law,  the  surety  on  the  bond 
before  consolidation  is  liable  for  a  breach  committed  after  the 
amalgamation  of  the  two  corporations.3 

§  283.  Continuing  Liability  of  Surety. — Many  bonds  are 
drawn  binding  the  surety  during  the  time  of  the  principal's  con- 
tinuance in  office  and  until  his  successor  is  elected  and  qualified. 


1  Cincinnati,  etc.,  R.  R.  Co.  v.  Morrell.  11  Ileisk.  715;  Walch  v.  Seymour, 
28  Conn.  387 ;  Wappello  v.  Bigham,  10  Iowa,  39 ;  Raney  v.  The  Governor,  4 
Blackf.  (Ind.)  2:  Life  Association  v.  Lemke,  40  Kan.  661;  Manufacturers, 
etc.,  Co.  v.  Odd  Fellows  Asso.,  48  Pa.  St.  446;  People  v.  Toomey,  122  111. 
308.  Compare  Amherst  Bank  v.  Root,  2  Met.  r>2-2  ;  Exeter  Bank  v.  Rogers, 
7  N.  H.  21. 

■Mobile,  etc.,  R.  R.  Co.  v.  Brewer.  76  Ala.  135. 

•Eastern,  etc.,  R.  R.  Co.  v.  Cochrane,  23  L.  J.  N.  S.  61. 


§  284,  285)     bonds  of  private  officers,  etc.  201 

But  such  bond  dues  not  bind  the  surety  beyond  the  period  of  his 
first  election  and  such  further  time  as  is  reasonably  sufficient 
for  the  election  and  qualification  of  the  principal's  successor,  the 
office  being  by  statute  an  annual  one.  The  principal's  re-election 
from  time  to  time  does  not  charge  the  sureties ;  and  the  statutory- 
provision  that  the  principal  when  elected  shall  hold  his  office 
until  another  is  chosen  and  qualified  in  his  stead,  does  not  extend 
the  surety's  liability  to  subsequent  elections  of  the  same  prin- 
cipal.4 

§  284.  Restriction  of  Surety's  Liability  by  Recitals  in 
the  Bond. — The  liability  of  the  sureties  may  be  restricted  by 
recitals  in  the  term  of  office  in  the  bond  itself.5  So  where  it  ap- 
pears by  the  records  of  a  corporation  that  the  office  by  the  regula- 
tion of  the  corporation  is  an  annual  one,  the  bond  should  be  re- 
stricted, which  will  control  the  surety's  liability.6  So  when  the 
recitals  in  a  bond  are  that  one  has  been  appointed  to  an  office 
for  a  limited  time,  it  will  restrict  the  liability  of  the  sureties.7 

§  285.  As  to  the  Scope  of  the  Officer's  Employment. — ■ 
A  surety  cannot  be  held  bound  for  a  longer  time  than  that  lim- 
ited by  his  undertaking,  and  such  undertaking  as  against  the 
surety  is  to  be  strictly  construed.8  The  surety  does  not  under- 
take to  be  liable  for  anything  beyond  the  letter  of  his  contract, 
and  is  only  liable  within  its  terms.9  But,  whether  the  principal 
is  acting  within  the  scope  of  his  employment  or  not,  his  sureties 
are  liable,  provided  the  default  was  a  breach  of  the  condition 
of  his  bond.  Thus,  the  sureties  on  a  bond  of  a  bank  messenger 
are  liable  for  moneys  stolen  from  the  bank  by  the  messenger, 
whether  he  was  acting  within  the  scope  of  his  employment  or  not, 

•Lexington,  etc.,  R.  R.  Co.  v.  Elwell,  8  Allen,  371 ;  Middlesex  Manuf.  Co. 
v.  Lawrence,  1  Allen,  339. 

5  Arlington  v.  Merricke,  2  Sand.  411 ;  Liverpool  Water  Works  v.  Atkinson, 
C  East,  507. 

8  Dedham  Bank  v.   Chickering,   3   Pick.   335. 

7  Lexington,  etc.,  R.  R.  Co.  v.  Elwell,  8  Allen,  371. 

•Mullikin  v.  State.  7   Blackf.    (Ind.)    77. 

•Detroit  Sav.  Bank  v.  Ziegler,  49  Mich.  157. 


-     -  SURETYSHIP  AXD  GUARANTY.  Ch.  11 

as  the  theft  was  a  breach  of  the  condition  of  his  bond,  condi- 
tioned to  conduct  himself  honestly  and  faithfully.10  So,  under 
like  condition  of  bond  the  sureties  are  liable  if  a  cashier  trans- 
cends the  known  powers  of  his  office  by  changing  the  securities 
of  the  bank  without  its  knowledge  and  losses  accrue  by  the  abuse 
of  his  trust.11  So,  also,  the  appropriation  by  the  bookkeeper  of 
the  bank's  money,  and  making  fraudulent  entries  to  avoid  detec- 
tion is  a  breach  of  the  bond  conditioned  for  his  honesty,  and  the 
sureties  are  liable.12  But  if  the  sureties  sign  a  bond  for  a 
specific  business,  they  are  not  liable  for  the  principal's  defaults 
in  another  business  entirely  foreign  to  their  undertaking.13 

While  the  liability  of  a  surety  is  not  to  be  extended  by  implica- 
tion beyond  the  terms  of  the  contract  by  which  his  responsibility 
is  to  be  measured,  vet  a  bond  constituting  a  contract  must  have 
such  construction  given  to  it  as  to  carry  out  the  intention  of  the 
parties  thereto,  and  in  this  respect  there  is  no  difference  between 
such  contract  and  any  other.14  And  the  provisions  of  the 
statutes,  in  a  statutory  bond,  will  not  be  read  into  the  bond, 
thereby  adding  new  terms  to  it.15 

§  286.  Increase  of  Capital  Stock  of  Corporation. — It  is 
the  established  rule  of  law  that  a  party  to  a  contract  is  not  bound 
beyond  the  extent  of  his  engagement,  which  appears  from  the 
terms  of  the  contract,  and  the  nature  of  the  transaction  to  have 
been  in  his  contemplation  at  the  time  of  entering  into  it,  and 
that  his  liability  cannot  without  his  consent  be  extended  or  en- 

18  German  Am.  Bank  v.  Truth.  87  Pa.  St.  419. 

"Barrington  v.  Bank.  14  Serg.  &   K.  405. 

"Rochester  City  Bank  v.  Elwood,  21  N.  Y.  88;  Minor  v.  Bank.  1  Pet.  46; 
United  States  v.  Boyd,  15  Pet.   187. 

"Blair  v.   Ins.  Co..  10  Mo.  559. 

u Strawbridge   v.    Railroad    Co..    14    Md.    360;    Rochester    City    Bank   v. 

Klw !.  21   X.  V.  88;    Barrington  v.   Bank,  14  Serg.  &   R.  405;   Minor  v. 

Bank.  1  Pet  41  ;  Magee  v.  Ins.  I    ...  92  I  ,  S.  93;  Engles  v.  Ins.  Co..  4 
322;   German  Am.  Bank  v.  Auth,  ^7   Pa.  St.  410:  Rollstone  Nat.  Bank  v. 
Carleton,  136  Mass.  226;  Detroit  Sav.  Bank  v.  Ziegler.  40  Mich.  157,;  Mel- 
ville v.  Dodge,  6  M.  G.  A  S.  450. 

"Howard   Co.  v.   Hill.  88   Md.   111.     Compare  State  v.  Rubber  Mfg.  Co., 
150  Mo.  181. 


§    28 (J )  BOJN'DS   OF   TlilVATE   OFFICERS,   ETC.  203 

larged  either  by  the  obligee  or  by  the  operation  of  law.16  So  tho 
sureties  on  a  cashier's  bond,  in  which  they  undertake  to  save  the 
bank  harmless  from  every  loss  that  may  arise  from  the  cashier's 
mistakes  as  well  as  from  losses  arising  from  his  fraud,  inatten- 
tion or  negligence  in  the  performance  of  his  duties,  are  ex- 
onerated by  the  increase  of  the  capital  stock  of  the  bank, 
after  the  making  of  the  bond,  for  liability  for  acts-  of  the 
cashier  after  the  additional  capital  had  been  paid  in.  Be- 
cause it  increases  the  risk  for  greater  losses  that  may  occur 
through  malfeasance  of  the  cashier.17  But  this  doctrine  is  not 
accepted  by  all  the  courts.  Thus,  it  is  held  that  the  sureties  are 
not  released  by  the  increase  of  capital  stock,  as  it  does  not  in- 
crease the  liability  of  the  sureties  or  the  duties  of  the  principal.18 
And  so  the  increase  of  the  capital  stock  by  virtue  of  a  statute 
passed  after  the  making  of  the  cashier's  bond,  will  not  discharge 
the  sureties  on  such  bond.19  The  reason  for  this  last  rule  is 
that  there  is  no  change  in  the  office ;  that  the  duties  of  the  office 
remain  the  same,  and  that  the  increase  of  business  is  fairly  con- 
templated by  the  bond  looking  at  the  character  of  the  position 
which  the  principal  holds.20  Thus,  where  the  sureties  on  a  bond 
of  the  principal  whose  obligation  to  perform  all  the  duties  of  a 
ticket  agent  for  a  railroad,  embracing  those  which  are  or  may 
be  imposed  upon  him  under  the  present  appointment  or  any 
future  appointment,  they  are  not  released  because,  after  his  ap- 
pointment, the  capital  stock  of  the  corporation  is  increased.21 

16 Miller  v.  Stewart.  9  Wheat.  702;  Northwestern  Railway  Co.  v.  Whin- 
ary.  10  Exch.  77:  Bamford  v.  lies,  3  Exch.  280:  Banor  v.  Macdonald,  3  H. 
L.  Cas.  226. 

17  Grocers  Bank  v.  Kingman,  16  Gray.  473. 

lsBank  v.  Wollaston,  3  Hair.  (Del.)  00.  But  in  this  ease  the  bond  was 
not  conditioned  against  losses,  occasioned  by  the  cashier's  mistake. 

"Morris  Canal  v.  Van  Vorst,  21  N.  J.  L.  100:  Lionberger  v.  Krieger, 
SS  Mo.  160. 

"Strawbridge  v.  Railroad  Co.,  14  Md.  360;  Rollstone  Nat.  Bank  v.  Carle- 
ton.   136  Mass.  226. 

21  Eastern  R.  R.  Co.  v.  Loring,  136  Mass.  381.  In  comparing  this  case 
with  Grocers  Bank  v.  Kingman.  16  Gray.  473.  the  court  says  there  is  no 
close  analogy  between  the  duties  and  responsibilities  of  a  cashier  of  a 
bank  and  those  of  a  ticket  seller  of  a  railroad  company.     The  former  is 


204  SURETYSHIP  AM)  GUARANTY.  (Ch.  ll 

§  287.  Discharge  of  Surety  by  Fraud. — Persons  asked  to 
become  sureties  on  a  bond  for  the  good  conduct  and  fidelity  of  an 
officer  have  the  right  to  be  treated  with  perfect  good  faith.  If 
the  corporation  knows  of  a  secret  fact  materially  increasing  the 
risk  of  the  surety,  the  surety  is  entitled  to  have  the  fact  disclosed 
to  him,  an  opportunity  being  present  to  do  so.  If  the  surety 
is  deceived  by  misrepresentation  and  concealment  by  the  cor- 
poration, or  obligee,  he  will  be  released.22  To  accept  a  surety 
known  to  be  acting  upon  a  belief  that  there  are  no  unusual  cir- 
cumstances by  which  his  risk  will  be  materially  increased  while 
the  party  thus  accepting  knows  that  there  are  such  circumstances, 
will  release  the  surety,  if  the  obligee  has  a  suitable  opportunity 
to  make  such  disclosure.23  Thus,  where  a  bank  fraudulently 
conceals  that  a  teller  was  a  defaulter,  and  thereby  procures  per- 
sons to  go  on  his  bond,  such  sureties  are  not  liable  for  subsequent 
defaults.24  But  if  the  sureties  are  misled  by  the  principal,  and 
the  obligee  knows  nothing  of  the  fraud  perpetrated  upon  the 
sureties,  they  will  not  be  released.25 

It  is  held  by  some  courts  that  a  mere  concealment  by  the 
obligee  will  not  release  the  surety.26  But,  in  any  case,  the 
obligee  is  only  bound  to  give  information  of  such  facts  as  are  ab- 
solutely known.     He  is  not  bound  to  disclose  mere  rumors.27 

more  directly  affected  by  an  increase  of  the  capital  stock  of  the  corpora- 
tion than  the  latter.  Moreover,  in  that  case  the  sureties  were  bound  for 
-  -  that  might  arise  from  the  cashier's  mistakes,  as  well  as  from  his 
f:  ~>ud.  inattention  or  negligence  in  the  performance  of  his  duties.  "That 
n  is  not  authority  for  the  present  case."  See.  also,  Strawbridge  v. 
RaiLoad  Co..  14  Md.  360. 

"M.ltby's  Case.  1  Dow.  P.  Cas.  294:  Graves  v.  Ban}-.  10  Bush.  23. 

tnklin  Bank  v.  Cooper,   36  Me.   179:   Dinsmore  v.  Tidhall.  34  Ohio 
St.  411:  Aetna  Life  Ins.  Co.  v.  Mabbett,  IS  Wis.  668. 
:<  Wayne  v.  Bank,  52  Pa.  St.  343. 

■  Western,  etc.,  Ins.  Co.  v.  Clinton.  66  X.  Y.  326 ;  Magee  v.  Ins.  Co..  92 
•3:  Casoni  v.  Jerome,  5S  X.  Y.  315:  McWilliams  v.  Mason.  31  X.  Y. 
294;    Atlas  Bank  v.  Brownell,  9  R.  I.   16S;    Bostwick  v.  Van  Yoorhis,  91 
X.  V.  353. 

tea  Life  Ins.  Co.  v.  Mabbett,   18  Wis.   66S :   Atlantic,  etc.,  Tel.   Co,.! 
v.  Barnes,  64  X.  Y.  385.  * 

"  State  v.  Atherton.  40.  Mo.  209. 


§  288,  289)     bonds  of  private  officers,  etc.  205 

§  288.  Bond  Covering  Prior  and  Subsequent  De- 
faults.— If  the  sureties  become  liable  for  prior  as  well  as  future 
defaults  of  the  principal,  they  will  not  be  liable  if  their  names 
were  procured  by  the  obiigee  with  fraudulent  intent  who  knew 
that  the  principal  had  defaulted  in  the  past  of  which  the  sureties 
were  ignorant,  with  an  opportunity  to  communicate  such  de- 
faults.28 Misrepresentation  or  concealment  of  any  material 
part  of  the  transaction  will  avoid  the  contract  of  suretyship.29 

Still,  as  a  matter  of  law,  it  is  not  a  fraud  upon  the  sureties 
that  the  principal  was  behind  in  his  accounts  at  the  time  he  gave 
his  bond  of  indemnity,  and  no  notice  of  such  default  was  com- 
municated to  the  sureties.30  Because  intent  is  the  gist  of  the 
fraud,  and  this  must  be  made  to  appear  on  the  part  of  the 
obligee.31  So  a  surety  on  the  bond  of  a  cashier  of  a  bank  is  not 
discharged  by  the  mere  fact  that  the  cashier  was,  at  the  time  the 
bond  was  made,  a  defaulter.  Nor  will  the  negligence  of  the 
bank  to  ascertain  that  fact  discharge  the  surety.32 

§  289.  Principal  His  Own  Successor. — When  the  prin- 
cipal becomes  his  own  successor,  and  at  the  commencement  of  the 
second  term  makes  a  report  of  moneys  in  his  hands  and  gives 
a  new  bond  for  paying  over  such  moneys,  his  sureties  on  the 
second  bond  are  liable  for  the  amount  so  reported,  though  he  did 
not,  in  fact,  have  that  amount.33  They  are  liable  for  any 
amount  which  appears  to  have  been  in  the  hands  of  the  prin- 
cipal at  the  end  of  the  preceding  official  term  as  set  forth  in  his 
report.34 

"Franklin  Bank  v.  Cooper,  36  Me.  179;  29  Me.  542;  Franklin  Bank  v. 
Stevens,  39  Me.  532. 

29  Franklin  Bank  v.  Stevens,  39  Me.  532. 

"Roper  v.  Sangamon  Lodge,  91  111.  518;  Pittsburg,  etc.,  R.  R.  Co.  v. 
Shaeffer,  59  Pa.  St.  350;  Watertown  Fire  Ins.  Co.  v.  Simmons,  131  Mass. 
85;  Taft  v.  Gifford,  13  Met.  187-  Wilmington,  etc.,  R.  R.  Co.  v.  Ling,  18 
S.  Car.  116. 

31  Atlas  Bank  v.  Brownell,  9  R.  I.  168;  Roper  v.  Sangamon  Loage,  91 
111.  518. 

^Bowne  v.  Bank,  45  N.  J.  L.  361;  Tapley  v.  Martin,  116  Mass.  275;! 
Wayne  v.  Bank,  52  Pa.  St.  343;  Home  Ins.  Co.  v.  Holway,  55  Iowa  571. 

33  Roper  v.  Sangamon  Lodge,  91  111.  518. 

84  Morley  v.  Metamora,  78  111.  294. 


206  suretyship  and  guaranty.  (ch.  11 

§  290.  Continuing  Principal  in  Office  After  Known 
Defaults. — Continuing  the  principal  in  office  after  kis  defaults 
are  known,  without  notice  to  the  surety,  does  not  discharge  him, 
no  fraud  or  dishonesty  being  shown  on  the  part  of  the  em- 
ployer.35 Because  it  is  the  business  of  the  surety  to  see  that  his 
principal  performs  the  duty  which  the  surety  has  guaranteed, 
and  not  the  obligee.36  So  where  the  agent  is  bound  by  by-laws 
of  a  corporation  to  render  his  accounts  monthly,  but  fails  to  do 
so  for  several  months,  and  his  sureties  are  not  informed  of  the 
defaults  by  the  obligee  for  some  time  thereafter,  it  does  not  dis- 
charge the  sureties.37 

§  291.  Delinquency  of  Obligee. — The  obligee  owes  no 
duty  of  active  diligence  to  take  care  of  the  interest,  of  the  surety. 
It  is  the  business  of  the  surety  to  see  that  his  principal  performs 
the  duty  which  he  has  guaranteed,  and  not  that  of  the  obligee,  or 
creditor.38  The  surety  is  bound  to  inquire  himself  and  cannot 
complain  that  the  obligee  does  not  notify  him  of  the  state  of  the 
accounts.  Mere  inaction  of  the  obligee  will  not  discharge  the 
surety  unless  it  amounts  to  a  fraud  or  concealment.31  Nor  will 
the  fact  that  the  obligee  neglects  to  ascertain  that  the  principal 
was  a  defaulter  before  giving  the  bond,  discharge  the  surety.40 

§  292.  Failure  to  Discharge  Delinquents. — Sureties  are 
not  discharged  from  subsequent  liability  by  the  omission  on  the 
part  of  the  obligee  to  notify  them  of  the  default  of  their  prin- 

"  Atlantic,  etc.,  Tel.  Co.  v.  Barnes,  64  N.  Y.  385;  Watertown  Fire  Ins. 
Co.  v.  Simmons,  131  Mass.  85. 

36  Wright  v.  Simpson,  6  Ves.  714;  Tapley  v.  Martin,  116  Mass.  275. 

"Watertown  Fire  Ins.  Co.  v.  Simmons,  131  Mass.  85;  Pittsburg,  etc.  R. 
R.  Co.  v.  Shaeffer,  59  Pa.  St.  350;  Taylor  v.  Bank,  2  J.  J.  Marsh.  564;  Bush 
v.  Critchfield,  4  Ohio,  736;  McKenzie  v.  Ward,  58  N.  Y.  541;  Winthrop 
v.  Soule   (Mass.),  56  N.  E.  Rep.  575. 

"Atlas  Bank  v.  Anthony,  18  Pick.  238. 

"Watertown  Fire  Ins.  Co.  v.  Simmons,  131  Mass.  85;  Batchelor  v.  Bank, 
78  Ky.  435;  McTaggart  v.  Watson,  3  CI.  &  F.  536;  Amherst  Bank  v.  Root, 
2  Met.  522;  Alias  Bank  v.  Brownell,  »  R.  I.  168;  Morris  Canal  v.  Van 
Voi  -1.  21    \.  J.  I..    Kid.    liayne  v.  Bank,  52  Pa.  St.  343. 

"Bowne  v.  Bank,  45  N.  J.  L  360;  Tapley  v.  Martin,  116  Mass.  275; 
Wayne  v.  Bank,  52  Pa.  St.  343. 


§    293)  BONDS   OK   PRIVATE    OFFK   ERS,    ETC  207 

cipal  known  to  the  obligee,  and  a  continuance  of  the  employment 
after  such  default,  in  the  absence  of  evidence  of  fraud  and  dis- 
honesty on  the  part  of  the  principal.41  If  the  sureties  are  re- 
leased by  acts  of  the  obligee  in  any  cases,  they  are  still  bound  for 
prior  defaults  of  their  principal.4" 

As  a  general  rule  sureties  are  not  relieved  from  liability  for 
moneys  for  which  the  principal  has  failed  to  account,  where  it 
does  not  appear  that  the  moneys  wore  embezzled  or  the  obligee 
wrongfully  and  fraudulently  concealed  from  the  sureties  the 
neglect  and  irregularity  of  the  officer  in  the  performance  of  his 
official  duties.43  But  where  the  principal  embezzles  the  money 
of  the  obligee  who  fraudulently  conceals  the  fact  from  the  sure- 
ties, then  they  are  released  and  not  liable  for  subsequent  defal- 
cations.44 

§  293.  Failure  to  Notify  Surety  of  Default. — The 
sureties  on  a  bond  are  not  entitled  to  notice  of  the  principal's 
default,  nor  need  any  demand  be  made  upon  them  before  action 
brought  on  the  bond.45  Mere  laches  of  the  obligee  unaccom- 
panied by  fraud  will  not  discharge  the  sureties.  So,  where  the 
obligee  delays  for  a  long  time  to  notify  the  sureties  of  the  prin- 
cipal's default,  or  to  prosecute  on  the  bond  it  will  not  discharge 
the  sureties.46      To  avoid  a  bond  of  a  cashier  on  the  ground  of 

41  Harrisburg  v.  Guiles,  192  Pa.  St.  191 ;  Atlantic,  etc.,  Tel.  Co.  v.  Barnes, 
64  N.  Y.  385;  Pittsburg,  etc.  R.  R.  Co.  v.  Shaeffer,  59  Pa.  St.  350;  Gradle 
v.  Hoffman,  105  111.  147.  Compare  Phillips  v.  Foxall,  L.  R.  7  Q.  B.  6G6; 
Sanderson  v.  Aston,  L.  R.  8  Exch.  73;  Burgess  v.  Eve,  L.  R.  13  Eq.  450; 
Montague  v.  Tidcombe,  2  Vein.  518;  Mases  v.  United  States,  166  U.  S.  571. 

"State  Bank  v.  Chetwooa.  8  N.  J.  L.  1. 

43  Harrisburg  v.  Guiles,  192  Pa.  St.  191;  Bostwick  v.  Van  Voorhis,  91  N. 
Y.  353;  Independent  School  Dist.  v.  Hubbard  (Iowa).  81  N.  W.  Rep.  241; 
Tapley  v.  Martin,  161  Mass.  275;  Home  Ins.  Co.  v.  Gow,  59  Pa.  St.  685; 
Wade  v.  Mt.  Sterling  (Ky.),  33  S.  \Y.  Rep.  1113;  Sc_rewmen>  By.tt.ev-Assp. 
v.  Smith.  To  Tex.  168;  Boreland  v.  Washington  County,  -J'.)  Pa.  St.  150; 
Pine  Co.  v.  Willard,  39  Minn.  125;  Farmers'  Nat.  Bank  v.  Braden,  L45  Pa. 
St.  473. 

44  Bolz  v.  Stuhl,  4  Pa.  Super.  Ct.  52. 

45  Grocers  Bank  v.  Kingman,  16  Gray,  473. 

46MorriB  Canai  v.  Van  Vorst,  21  N.  J.  L.  100;  Pittsburg,  etc.,  R.  R.  Co. 
v.  Shaeffer,  59  Pa.  St.  359;  Willmington,  etc.,  R.  R.  Co.  v.  Ling,  18  S.  Car. 
539. 


208  SURETYSHIP  AND  GUARANTY.  (Ch.  11 

fraud  on  the  part  of  the  bank  or  its  directors,  a  fraudulent  con- 
cealment of  something  material  for  the  surety  to  know  must  be 
shown.47  The  object  of  such  bond  is  to  guarantee  the  bank  for 
the  faithful  performance  of  the  cashier's  duty,  and  the  obliga- 
tion is  not  to  be  affected  by  the  neglect  of  the  bank,  and  such 
negligence  will  not  discharge  the  surety.48  And  before  a  bond 
in  such  case  can  be  avoided,  fraud  and  bad  faith  which  has  mis- 
led the  sureties  to  their  damage,  must  be  brought  home  to  the 
obligee  by  clear  and  decisive  evidence.49  The  acceptance  of  the 
resignation  of  the  principal  and  election  of  his  successor  without 
notice  to  the  sureties  does  not  relieve  them  from  liability  for  his 
defaults  before  resignation.50 

§  294.  Covenant  Xot  to  Sue. — A  covenant  not  to  sue  one 
of  several  sureties  will  not  discharge  the  others.  The  release  of 
one  of  joint  and  several  obligors  is  a  release  of  all,  but  a  cove- 
nant not  to  sue  one  of  several  obligors  can  never  have  the  effect 
of  a  release,  except  to  the  one  to  whom  it  is  given.51  So,  where 
one  of  several  obligors  or  sureties  is  given  an  instrument  by  the. 
obligee  covenanting  not  to  sue  him  for  default  of  his  principal, 
it  operates  as  an  absolute  release  and  acquittance  of  his  liability 
on  his  principal's  bond,  and  is  a  covenant  not  to  sue;  but  none 
of  the  other  joint  and  several  sureties  is  released.52 

§  295.  Accoed  and  Satisfaction. — The  principal  may  set- 
tle his  obligation  by  accord  and  satisfaction,  and  the  surety 
thereby  released.  Thus,  when  the  principal  gives  his  note  for 
settlement  of  the  obligation,  which  is  accepted  as  an  absolute 
payment  by  the  obligee,  the  surety  held  by  the  obligation  is  re- 
leased.53 Because  a  note  of  the  principal  given  and  received 
in  satisfaction  by  express  agreement  will  be  considered  a  dis- 

47  Atlas  Bank  v.  Brownell.  9  R.  I.  168. 
"Tapley  v.  Martin.  116  Mass.  275. 
■  Bostwick  v.  Van  Voorhis,  91  N.  Y.  353. 
M  Stemmorman  v.  Lillienthal,  54  S.  Car.  440. 

11  Crane  v.  Ailing,  15  N.  J.  L.  423;   Dean  v.  Newhall.  2  Term  R.   163; 
Thompson  v.  Lock,  3  M.  G.  &  S.  540;  Clark  v.  Mallory,  83  Til.  App.  488. 
"  Bowne  v.  Bank,  45  X.  J.  L.  SCO. 
"Morris  Canal  v.  Van  Vorst,  21   X.  J.  L.  100. 


§  296-298)      bonds  of  private  officers,  etc.  209 

charge  of  the  original  contract.54  And  so  an  executed  parol 
agreement  may  abrogate  a  "bond  or  sealed  instrument  in  many 
jurisdictions.55 

§  296.  Notice  of  Surety's  Withdrawal. — A  surety  can 
withdraw  from  the  bond  of  an  officer  of  a  corporation  by  giving 
reasonable  notice.  But  the  withdrawal  cannot  take  effect  imme- 
diately upon  service  of  notice.  Because  the  directors  receiving 
such  notice  must  have  a  reasonable  time  to  act  and  to  give  notice 
to  the  principal  and  the  co-sureties  if  there  be  any,  and  time  to 
procure  a  new  bond.  Hence  such  notice  cannot  operate  imme- 
diately, and  such  notice  does  not  affect  the  liability  of  the  other 
sureties.56 

§  297.  Discharge  by  Acts  of  the  Obligee. — Acts  of  the 
corporation  may  be  such  as  to  discharge  the  sureties  who  are  on 
the  bond  of  one  of  its  agents.  Thus,  the  sureties  on  a  treasurer's 
bond  are  not  liable  for  defaults  which  occurred  after  the  omis- 
sion to  re-elect  him  at  a  regular  meeting  of  the  directors  of  the 
corporation  for  that  purpose,  and  after  such  further  time  as  may 
be  reasonably  sufficient  for  the  election  and  qualification  of  his 
successor,  although  he  continues  to  act  as  treasurer,  and  his  re- 
election at  the  next  meeting  thereafter.57  So  where  a  charter  is 
forfeited  the  sureties  on  a  cashier's  bond  are  not  liable  after- 
wards, though  a  statute  is  passed  reviving  the  charter.58  So, 
where  the  remuneration  of  the  principal  is  changed  so  as  to  make 
a  different  agency,  the  sureties  are  released.59 

§  298.  Action  on  the  Bond. — The  action  on  the  bond  is 
often  regulated  by  statute.     Thus,  in  Massachusetts,  the  sure- 

84  Sheeby  v.  MandovUle,  6  Cranch,  253. 

"Alschuler  v.  Schiff,  1(>4  111.  298;  Allen  v.  Jaquish,  21  Wend.  628; 
Talbut  v.  Whipple,  14  Allen,  177. 

"Bostwick  v.  Van  Voorhie,  91  N.  Y.  353. 

"Lexington,  etc.,  R.  R.  Co.  v.  Elwell,  8  Allen,  371. 

"Bank  v.  Barrington,  2  P.  &  W.  (Pa.)  27.  Compare  Union  Bank  v.  For- 
rest. 3  Cranch,  C.  C.  218. 

M  Northwestern  Railway  Co.  v.  Whinary,  10  Exch.   77. 

14 


210  SURETYSHIP  AND  GUARANTY.  (Ch.  11 

ties  on  a  bond,  severally,  but  not  jointly,  may  be  joined  as  de- 
fendants in  one  action  on  the  bond.60  The  sole  purpose  of  this 
statute  is  to  facilitate  proceedings  against  parties  severally  liable 
on  the  same  contract,  and  to  permit  their  rights  to  be  determined 
under  one  process,  instead  of  compelling  the  party  seeking  re- 
dress to  resort  to  several  actions.61  If  the  bond  is  made  to  the 
directors  instead  of  the  corporation,  the  legal  effect  is  to  make 
it  apply  to  the  corporation,  which  may  bring  action  against  the 
sureties.62  If  the  bond  is  given  to  the  directors  of  a  joint  stock 
company,  who  are  elected  annually,  such  directors  can  bring 
action  on  the  bond  after  they  have  ceased  to  be  directors.63 

If  a  surety  in  witness  of  his  obligation  to  perform  certain 
covenants  and  conditions  affixes  his  hand  and  seal  to  the  in- 
strument, and  delivers  it  as  his  bond,  it  is  adequate  to  bind  him, 
although  his  name  is  not  mentioned  in  any  part  of  the  body  of 
the  bond,  and  a  blank  for  it  is  left  unfilled.64  And  so  two  or 
more  obligors  may  adopt  one  seal  and  be  charged  as  obligors,  al- 
though the  names  of  all  the  signers  do  not  appear  in  the  body  of 
the  bond.65 

In  a  joint  action  against  a  cashier  and  his  sureties  the  ad- 
missions and  declarations  of  the  cashier  as  to  his  defaults  are 
evidence  against  his  sureties.66  Because  the  principal  and  sure- 
ties are  all  bound  by  a  joint  obligation,  all  declarations  and  ad- 
missions of  the  principal  are  evidence  against  the  sureties  in  an 
action  against  them.67  In  a  joint  and  several  bond  a  principal 
is  not  a  necessary  party  to  an  action  against  his  surety.68 

§   299.   Sureties   Concluded  by  Recitals  in  a  Bond. — * 

"Grocers    Bank  v.  Kingman,  1G  Cray,  473. 

81  Fuller  v    Morris,  4  Gray,  295. 

"  Bayle  v.  Ins.  Co.,  6  Hill  (N.  Y.).  476. 

"  Anderson  v.  Langdon,  1  Wheat.  85. 

•♦Howell  v.  Parsons.  89  N.  C.  230;   Danker  v.  Atwood,   119  Mass.   140; 
Bcheid  v.  Liebshultz,  51  End.  38. 

M  Building  Association  v.  Cummings,  45  Ohio  St.  664. 
nherBl    Bank  v.  Root,  2  Met.  522. 

"  Pendleton  v.  Bank,  1  Mon.  181.  See,  also.  Union  Bank  v.  Ridgely,  1 
Har.  A  G.  (Md.)  327. 

"Whipp  v.  Casey    (R.  I.),  45  At.  Rep.  93. 


§    300)  BONDS   OF   PItlVATE   OFFICERS,   ETC.  211 

Sureties  are  concluded  by  the  recitals  in  the  bond  which  they 
have  executed. e9  Thus,  where  a  cashier's  bond  recites  that  he 
had  been  appointed  by  the  board  of  directors,  such  recital  is  con- 
clusive on  the  sureties.70  And  so  when  the  recital  states  that  a 
certain  person  has  been  appointed  an  officer  or  agent,  the  surety 
cannot  contradict  this  by  showing  that  the  appointment  was  in 
fact  subsequent  to  the  date  or  even  to  the  delivery  of  the  bond.71 
When  the  condition  of  the  bond  is  plainly  set  forth  it  cannot  be 
controlled  by  any  recitals  not  plainly  inconsistent  therewith.72 

§  300.  Liability  foe  Loss  of  Money. — An  agent  or  officer 
of  a  corporation  is  required  to  use  reasonable  diligence  in  taking 
care  of  money  coming  into  his  hands.  If  he  does  this  he  and  his 
sureties  are  not  liable  for  loss.  Thus,  an  agent  of  a  railroad 
company  who  has  exercised  due  care  and  diligence,  and  kept 
the  money  as  required  by  the  corporation,  and  it  is  stolen,  he 
and  his  sureties  are  not  liable.73  So  where  a  party  receives  pub- 
lic moneys,  but  is  not  a  public  officer  and  disburser  of  the  money, 
and  uses  due  diligence,  and  the  money  is  lost  or  stolen,  he  is 
not  liable  therefor.  Thus,  a  surrogate  is  not  a  public  officer 
appointed  to  receive  or  disburse  public  money,  and  it  is  not  his 
main  duty  to  receive,  keep  or  disburse  the  money  of  individuals. 
He  is  a  mere  trustee  or  agent  of  the  private  parties  whose  money 
comes  into  his  hands  by  order  of  court.  So  if  he  deposits  such 
money  in  a  bank  which  fails,  without  neglect  on  his  part,  he  and 
his  sureties  are  not  liable  for  the  money  lost  by  such  failure.74 

••Thompson  v.  Dernier,  16  App.  Div.  160;  Cutler  v.  Dickinson,  8  Pick. 

T0  Lionberger  v.  Kreiger,  88  Mo.  160. 

"Washington  Co.  v.  Ins.  Co.,  26  Conn.  42. 

"Australian  Joint  Stock  Bank  v.  Bailey   (1899),  App.  Cas.  396. 

13  Chicago,  etc.,  R.  R.  Co.  v.  Bartlett,  120  111.  603. 

"People  v.  Faulkner,  107  N.  Y.  477. 


212  SURETYSHIP    AND    GUARANTY.  Ch.  12 

CHAPTER  XII. 

BONDS    OF    PUBLIC    OFFICERS   AND   AGENTS. 

§  301.  Extent  of  Surety's  Liability. — The  liability  of  a 
surety  is  not  to  be  extended  by  implication  beyond  the  terms  of 
his  contract.  When  he  signs  the  bond  of  a  public  officer  he 
undertakes  to  be  responsible  for  the  principal's  official  acts  dur- 
ing the  term  of  his  office.1  So  the  sureties  are  liable  for  all 
moneys  received  in  an  official  capacity  by  their  principal,  or  in 
his  hands  during  the  term  of  office,  but  not  for  his  wrongful  acts 
before  they  became  responsible  for  his  official  conduct  by  signing 
his  bond.2  So  when  money  has  been  received  and  converted  by 
the  officer  during  a  prior  term,  the  sureties  on  a  subsequent  bond 
are  not  liable  for  such  past  default.3  The  sureties  are  only 
liable  for  the  misconduct  of  the  office?  in  his  official  capacity 
during  his  term,  when  they  were  his  surety.4  And  until  the 
sureties  are  accepted  by  the  obligee,  they  are  at  liberty  to  revoke 
the  bond.  But  until  they  signify  an  intention  to  recede,  the 
State  may  bind  them  by  accepting  their  offer  to  answer  for  the 
official  misconduct  of  their  principal.5  And  the  principal  in  an 
official  bond  has  the  implied  agency  to  deliver  it  as  the  contract 
of  the  sureties.6 

When  the  surety  signs  a  bond  the  law  raises  an  implied  prom- 
ise by  the  principal  to  reimburse  the  surety  for  any  loss  which 

|{Ladd  v.  Trustees,  80  111    234;  Rochester  v.  Randall,  105  Mass.  295. 

•Morley  v.  Metamore.  76  111.  396;  Parker  v.  Medsker,  80  Ind.  155;  Stern 
V.  People,  96  111  475;  State  v.  Alsup,  91  Mo.  172;  Detroit  v.  Weber,  29 
Mich.  24;  Van  Sickel  v   Buffalo  Co.,  13  Neb.  103 

'Bissell  v.  Saxton,  66  N.  Y.  55. 

4  People  v.  Smith,  123  Cal  70;  State  v.  Moore,  56  Neb.  82;  Pundman  v. 
Schoenlich,  144  Mo.  149;  Cheboygan  Co.  v.  Erratt.  110  Mich.  156. 

'State  v.  Dunn,  11  La.  Ann.  550;  Paxton  v.  State  (Neb.),  81  N.  W. 
Kep    383. 

•  Pequawket  Bridge  v.  Mathis,  8  N.  II.  139;  King  Co.  v.  Perry,  5  Wash. 
536. 


§    302,  303)       BONDS    OF    PUBLIC    OFFICERS,    ETC.  213 

he  may  sustain,  and  when  the  loss  occurs  this  implied  contract  of 
indemnity  relates  back  and  takes  effect  from  the  time  when  the 
surety  became  responsible.7  An  illegal  agreement  by  a  public 
officer  to  deposit  public  funds  in  a  bank  represented  by  his 
sureties,  upon  which  agreement  they  sign  the  bond,  is  so  blended 
with  the  officer's  implied  promise  to  indemnify  the  sureties 
against  loss  that  the  implied  promise  cannot  be  enforced  by 
them.  Because  the  law  will  not  enforce  an  implied  promise 
of  indemnity  resting  upon  an  illegal  consideration  that  a  bank 
would  borrow  money  and  pay  interest  on  it ;  the  parties  in  such 
case  are  all  engaged  in  the  illegal  enterprise,  and  all  are  equally 
involved.8 

§  302.  Liability  of  Surety  fob  Previous  Defaults  of 
the  Officer. — In  the  absence  of  statute  providing  otherwise, 
or  of  express  stipulation  in  the  bond,  sureties  on  officers'  bonds 
are  not  liable  for  the  defaults  of  theii  principal  occurring  before 
the  execution  of  the  bond.  And  the  fact  that  the  principal  is 
the  incumbent  of  the  same  office  for  successive  terms,  does  not 
change  the  rule,  since,  in  such  cases,  the  sureties  on  the  last  bond 
must  be  treated  and  considered,  and  the  extent  of  their  liability 
determined  as  far  as  practicable,  as  if  their  principal  had  not 
been  the  incumbent  for  the  preceding  term.9 

§  303.  Presumption  as  to  Sureties  on  a  Second  Bond. — 
No  presumption  arises  against  the  sureties  on  a  second  official 
bond,  that  moneys  which  came  into  the  principal's  official  pos- 
session, while  a  former  bond  was  in  force,  were  in  his  hands 
when  the  second  bond  was  executed ;  but  each  case  must  be 
governed  by  its  own  particular  facts  and  circumstances.10   Some 

TChoteau  v.  Jones,  11  111.  300;  Ramsay  v.  Whitbeck,  183  111.  550;  Rice  v. 
Southgate,  16  Gray,  142. 

"Ramsay  v.  Whitbeck,  183  111.  550. 

"Townsend  v.  Everett,  4  Ala.  607;  Farrar  v.  United  States,  5  Pet.  373; 
United  States  v.  Boyd,  15  Pet.  187;  Bissell  v.  Saxton.  66  N.  Y.  60;  Detroit 
v.  Weber,  29  Mich.  24;  Vivian  v.  Otis,  24  Wis.  518;  McPhillips  v.  McGrath, 
117  Ala.  549 

"McPhillips  v.  McGrath,  117  Ala.  549. 


21-i  SURETYSHIP    AND    GUAEAKTY.  (Cll.    12 

courts  state  the  doctrine  still  stronger,  that  there  is  no  presump- 
tion as  against  the  sureties  on  a  second  bond,  that  the  money 
which  came  into  the  possession  of  the  principal  while  a  former 
bond  was  in  force,  is  still  in  his  hands  when  the  second  was  exe- 
cuted, thereby  making  the  second  sureties  liable.11  But  it  is 
the  better  rule  that  each  case,  as  to  such  presumptions,  must  be 
governed  by  its  particular  facts  and  circumstances.  But  if 
there  is  no  evidence  whatever  to  determine  in  which  term  the 
default  occurred,  the  law  will  presume  that  it  occurred  in  the 
last  term.13 

§  304.  De  Facto  Officers. — Where  it  appears  that  a  party 
elected  or  appointed  to  a  public  office,  has  executed  a  bond,  but 
has  not  qualified  according  to  law,  and  takes  possession  of  the 
office  by  color  of  right,  he  is  a  de  facto  officer,  and  the  sureties 
on  his  bond  are  liable  for  his  official  defaults.  A  person  being 
an  officer  de  facto  will  not  be  permitted  to  show  or  rely  upon  the 
fact  that  he  was  not  an  officer  de  jure  for  the  purpose  of  attack- 
ing and»setting  aside  anything  which  he  may  have  done  in  his 
official  capacity ;  and  upon  like  reasons  his  sureties  are  also 
estopped.14  So  where  the  election  of  a  sheriff  was  void,  and  his 
induction  into  office  illegal,  he  becomes  an  officer  de  facto,  but 
not  de  'jure,  and  those  on  his  voluntary  bond  as  sureties  cannot 
absolve  themselves  from  liability  by  insisting  that  he  was  not 
sheriff.15  If  a  person  discharges  the  duties  of  a  public  officer 
under  color  of  right,  he  is  an  officer  de  facto,  and  not  a  mere 
intruder,  and  his  sureties  are  estopped  by  the  recitals  in  his 
official  bond  from  denying  that  he  was  entitled  to  the  office.16 

11  Myers  v.  United  States,  1  McLean,  493. 

12  Williams  v.  Harrison,  19  Ala.  277  ;  McPhillips  v.  McGrath,  117  Ala.  549. 
"Kelly  v.   State,   25   Ohio   St.   567;    Clark   v.   Wilkinson,   50   Wis.   543; 

Kagey  v.  Trustees,  68  111.  75;  Pine  Co.  v.  Willard.  39  Minn.  125;  Baoken- 
Btedt  v.  Perkins,  73  Iowa,  23;  Goodwin  v.  State,  81  Ind.  109.  Compare 
Trustees  v.  Smith,  88  111.  181;  Phipsbury  v.  Dickinson,  78  Me.  457. 

'Mireen  v.  Wardwell,  17  111.  278;  Chicago  v.  Gage,  95  PI.  593  :  Boone  Co. 
v.  Jones,  54  Iowa,  699;  Plymouth  v.  Painter,  17  Conn.  585;  Buckman  v. 
Rubles,  15  Mass.  180;  People  v.  Collins,  7  Johns.  549;  Peed  v.  Hedges, 
16  W.  Va.  194;    Boll   Co.  v.  Scott,  53  Nob.   170. 

18  Jones  v.  Bcanland,  <i  Humph.  195. 

"State  v.  Rhoades,  6  Nev.  352;   I'o't  Co.  v.  Scott,  53  Neb.  176. 


§    305)  BONDS    OF    TUBL1C    OFFICEES,    ETC.  215 

§  305.  Officers  Holding  Over. — A  bond  or  obligation 
given  to  secure  the  performance  of  officnal  duties,  is  to  be  con- 
strued  with  reference  to  the  term  for  which  the  incumbent  is 
elected  or  appointed ;  and  the  law  governing  as  to  term,  its  time 
of  commencement  and  expiration,  and  the  conditions  and  contin- 
gencies upon  which  it  shall  begin,  continue  and  come  to  an  end, 
enters  into  and  forms  a  part  of  such  bond  or  obligation  where 
general  language  is  used  in  stipulating  the  conditions.  The 
sureties  upon  such  undertaking  are  presumed  to  know  the  dura- 
tion and  term  when  they  become  parties  to  such  bond,  and  to 
have  intended  to  bind  themselves  to  the  extent  and  for  and  dur- 
ing the  time  that  their  principals  were  bound.17  And  where  it 
is  provided  by  law  that  a  public  officer  shall  hold  his  office  until 
his  successor  is  appointed  or  elected,  the  term  of  office  does  not 
expire  until  he  leaves  the  office,  as  he  continues  in  office  by  virtue 
of  the  previous  election  and  qualification.  Hence,  the  sureties 
on  his  official  bond  of  such  officer  who  holds  under  the  law  until 
his  successor  is  appointed  or  elected  and  qualified,  are  liable  for 
defalcations  of  their  principal  after  the  expiration  of  the  year, 
while  holding  over  pending  the  election  or  appointment  of  his 
successor.18  For  the  official  acts  of  the  principal  during  the 
time  he  thus  holds  over  without  any  new  appointment,  come 
within  the  term,  and  he  and  his  sureties  are  liable  on  his  official 
bond  given  at  the  time  of  the  qualification.19 

Some  authorities  hold  that  the  officer  so  holding  over  after 
the  technical  term,  is  not  an  officer  de  jure,  and  that  the  time 
intervening  between  the  expiration  of  the  period  fixed  by  the 
statute,  and  the  election  and  qualification  of  a  successor,  is  not  a 
part  of  the  preceding  term,  and  that  the  holding  over  is  pro 

"Mayor  v.  Crowell,  40  N.  J.  L.  207;  Scott  Co.  v.  Ring,  29  Minn.  401; 
Welch  v.  Seymour,  28  Conn.  393;  Wapello  Co.  v.  Bigham,  10  Iowa,  42; 
Savings  Bank  v.  Hunt.  72  Mo.  597  ;  State  v.  Berry,  50  Ind.  496 ;  Sparks 
v.  Bank,  3  Del.  Ch.  300;  Riddel  v.  School  Dist.,  15  Kan.   168. 

18  Baker  City  v.  Murphy,  30  Oreg.  405. 

19  Long  v.  Seay,  72  Mo.  648 ;  State  v.  Kurtzehone,  78  Mo.  99 ;  State  v.  Sul- 
livan, 45  Minn.  309 ;  Eddy  v.  Kincaid.  28  Oreg.  537 ;  State  v.  Wells,  8  Nev. 
105;  Thompson  v.  State,  37  Miss.  518;  Baker  City  v.  Murphy,  30  Oreg.  405. 


216  SURETYSHIP  AND  GUARANTY.  (Ch.  12 

tempore.20  And  in  other  cases  it  is  held  that  the  holding  over 
is  only  an  acceptancy  of  that  proportion  of  the  successor's 
term.21  Again  it  is  stated  that  this  liability  of  the  sureties  for 
the  officer's  defaults  who  holds  over,  is  an  exception  to  the  rule 
that  the  liability  of  a  surety  ends  with  the  expiration  of  the  prin- 
cipal's term,  and  does  not  continue  for  the  additional  time. 

But  whether  considered  as  an  exception  or  as  the  rule  itself, 
it  can  only  be  sustained  upon  the  principle  that  the  holding  over 
is  a  continuance  of  the  term,  and  together  with  the  technical 
term  constitutes  one  and  the  same  term.  But  where  the  legis- 
lature extends  the  term  after  the  execution  of  the  bond,  it  is  said 
the  rule  is  different.  Such  extension  will  be  an  impairment  of 
the  sureties'  contract ;  for,  at  the  time  of  assuming  the  obligation, 
they  could  not  have  had  in  mind  the  extended  period  which  the 
legislature  afterwards  saw  fit  to  add  to  the  term  fixed  by  law, 
and  did  not  engage  to  become  responsible  for  the  acts  of  their 
principal  during  the  added  time.22 

But  other  courts  of  the  highest  standing  hold  a  different  view, 
which  cannot  be  reconciled  with  the  doctrine  that  the  sureties 
are  responsible  for  the  official  acts  of  the  principal  during  the 
time  of  holding  over.  They  hold  that  when  an  officer  holds  for 
the  definite  term  and  until  his  successor  is  elected  or  appointed, 
the  sureties  are  liable  only  for  a  reasonable  period  after  the 
expiration  of  the  technical  term,  for  the  election  and  qualifica- 
tion of  the  successor;  that  it  is  not  reasonable  to  suppose  that 
the  sureties  may  be  held  for  an  indefinite  time,  even  for  their 
lifetime.23 

§  306.  Death  of  Officer. — The  death  of  a  public  officer 
during  his  term  creates  a  vacancy,  but  does  not  change  his  obli- 
gations.    And  so  where  the  money  is  not  paid  according  to  his 

50  State  v.  Howe,  25  Ohio  St.  597. 

■  Riddell  v.  School  Dist.,  15  Kan.  170. 

22  King  Co.  v.  Ferry,  5  Wash.  530.  Compare  People  v.  McHatton,  2  Gil. 
(III.)    732. 

"  Chelmesford  Co.  v.  Demorest,  7  Cray,  1;  Mayor  v.  Crowell,  40  N.  J.  L. 
207;  Citizen's  Loan  Asso.  v.  Nugent,  40  N.  J.  L.  215;  Mayor  v.  Horn,  2 
Harr.  (Del.)  190;  Dover  v.  Twombly,  42  N.  H.  59;  Welch  v.  Seymour,  28 
Conn.  387. 


§  307)        BONDS  OF  TUBLIC  OFFICERS,  ETC.  217. 

obligation  to  his  successor,  the  sureties  on  his  bond  are  liable.84 
Because  the  obligation  was  to  pay  over  to  the  proper  officer  the 
money  in  his  hand  at  the  termination  of  his  service,  in  whatever 
way  that  event  may  be  produced,  whether  by  resignation,  re- 
moval or  death.25 

The  rule  as  to  the  obligation  of  a  guarantor  in  respect  to 
transactions  occurring  after  his  death,  is  that  the  obligation  is 
not  affected  by  his  death,  if  the  contract  of  guaranty  is  one  from 
which  he  might  not  withdraw  upon  notice ;  if  he  could  have 
done  so,  then  his  death  will  give  the  effect  of  a  notice  of  with- 
drawal, as  held  by  some  courts;26  but  other  decisions  hold  that 
before  his  death  is  notice,  it  must  be  brought  home  to  the 
obligee.27  And  so  where  the  surety  cannot  be  released  without 
the  consent  of  the  obligee,  his  death  makes  his  estate  liable  for 
defaults  of  his  principal.28 

§  307.  Money  Used  to  Cover  Previous  Delinquencies. — 
Sureties  on  a  second  bond  are  responsible  for  public  money  re- 
ceived during  the  second  term,  which  is  applied  to  cover  a  pre- 
vious delinquency  under  a  former  bond,  because  it  is  a  misappli- 
cation of  money.29  Thus,  where  a  collector  receives  taxes  for  a 
particular  year,  and  instead  of  having  them  applied  to  the 
credit  of  the  taxes  for  that  year  with  which  he  is  chargeable, 
directs  their  application  to  the  discharge  of  his  defaults  for 
previous  years,  such  application  is  a  breach  of  his  official  bond, 
for  which  his  last  sureties  are  responsible.30  Paying  money 
received  in  a  subsequent  term  to  make  satisfaction  of  defalca- 

■»  Great  Falls  v.  Hanks,  21  Mont.  83. 

25  Allen  v.  State,  6  Blackf.   (Ind.)   252. 

20  Lloyd  v.  Harper,  16  Gh.  Div.  290;  Calvert  v.  Gordon,  3  Man.  &  R.  124; 
Green  v.  Young,  8  Me.  14;  Moore  v.  Wallis,  18  Ala.  458;  Voris  v.  State,  47 
Ind.  345. 

"Jordan  v.  Dobbins,  122  Mass.  168;  Hyland  v.  Habich,  150  Mass.  112; 
Coulthart  v.  Clementson,  5  Q.  B.  Div.  42;  Gray  v.  Wood,  67  Conn.  147. 

"Fewlass  v.  Keesham,  88  Fed.  Rep.  573;  Holden  v.  Jones,  7  Ired.  L.  191. 

"Pine  Co.  v.  Willard,  39  Minn.  125;  Gwynne  v.  Burnell,  7  CI.  &  F.  572; 
Coleraine  v.  Bell,  7  Met.  499 :  State  v.  Sooy,  39  N.  J.  L.  539. 

•°  Frownfelter  v.  State,  66  Md.  80. 


218  SURETYSHIP    AND    GUARANTY.  (  CL   12 

tions  occurring  in  a  prior  term  is  a  breach,  of  his  last  bond,  as  a 
misappropriation  of  money  received  in  his  official  capacity,  and 
his  last  sureties  are  liable  for  such  breach  as  if  he  had  paid  it 
out  for  any  other  purpose  not  in  his  official  capacity.31 

§  305.  Giving  Second  Bond  ra  Same  Teem. — Giving  an 
additional  bond  during  the  same  term  of  office  does  not  neces- 
sarily discharge  the  sureties  on  the  first  bond.  The  sureties 
on  the  first  bond  are  not  released,  because  the  second  bond  does 
not.  operate  as  a  merger  or  extinguishment  of  the  first  security, 
as  it  is  of  no  higher  degree,3-  and  is  to  be  treated  as  a  concur- 
rent security  with  the  original  bond.33  Thus,  where  a  sheriff, 
on  the  order  of  the  court,  gives  an  additional  bond,  either  or 
both  sets  of  sureties  are  liable  to  a  party  injured  by  the  official 
acts  of  the  sheriff.34  So  where  a  city,  according  to  law,  exacts 
another  bond,  this  does  not  release  the  sureties  on  the  first 
bond.35 

*  In  giving  a  second  bond,  the  sureties  are  only  liable  for  such 
acts  as  are  thereafter  done  by  the  principal,  unless  the  stipula- 
tions in  the  bond  or  the  statute  provide  that  the  second  sureties 
shall  be  liable  for  prior  as  well  as  subsequent  delinquencies  of 
the  officer.36 

§  309.  Giving  Bond  Without  Statutory  Authority. — In 
some  instances  an  officer  has  been  required  to  give  a  bond  which 
is  not  required  by  statutory  provisions :  that  is,  he  gives  a  volun- 
tary bond.  Such  bonds  are  valid  obligations,  and  sureties  on 
the  same  are  liable  for  defaults  of  their  principal  in  like  man- 
ner as  if  such  bond  was  required  by  statute;  such  bonds  are  a 

■  Gynne  v.  Burnell,  7  CI    &  V.  572. 

"Postmaster  Gen.  v.  Mungei,  2  Paine,  189;  Hand  Mfg.  Co.  y.  Marks 
(Oreg.),  59  Pac.  Rep.  549. 

"State  v.  Sappington,  67  Mo.  529;  Allen  v.  State.  61  End.  263. 

•«  State  v.  Crook?.  7  Ohio,  573. 

nN'ew  Orleans  v.  GauthreaHX,  39   La.  Ann.   10D; 

•♦.Fores  v.  Gallatine  Co.  78  Kv,  491  ;  Cullom  v.  Dolloff,  94  III.  330.  See, 
also,  Schufl  v    Pflanz,  99  Ky.  97;    M   Phillips  .rath.   117  Ala.  549. 


§    310)  BONDS    OF    PUBLIC    OFFICERS,    ETC.  zl9 

good  common-law  obligation.37  It  is  sufficient  to  make  a  bond 
valid  as  a  common-law  obligation,  that  it  is  voluntarily  given, 
and  that  the  office  and  the  duties  assigned  to  the  officer  and 
covered  by  the  bond,  are  duly  authorized  by  law.38  Thus,  a 
voluntary  bond  given  by  a  State  treasurer  for  the  faithful  dis- 
charge of  his  duties,  is  valid.39  The  general  rule  is  that  a  bond, 
whether  required  by  statute  or  not,  is  a  good  common-law  bond,  if 
entered  into  voluntarily  and  for  a  valuable  consideration,  and 
if  not  repugnant  to  the  letter  or  policy  of  the  law.40 

§  310.  General  and  Special  Bonds  Given  by  an  Officer. 
— The  general  rule  is  that  when  an  officer  is  required  to  per- 
form a  duty  which  is  special  in  its  nature,  he  is  required  to  give 
a  special  bond,  though  he  has  already  given  a  general  bond,  and 
in  the  absence  of  any  declaration  that  the  sureties  on  the  gen- 
eral bond  shall  also  be  liable,  it  does  not  bind  them  for  the 
special  duty.41  Thus,  a  county  treasurer,  where  his  bond  does 
not  cover  money  coming  into  his  hands  for  sale  of  school  and 
university  lands,  is  not  liable  on  his  bond  for  the  misappropria- 
tion of  such  money,  nor  his  sureties.  To  make  him  liable,  a 
special  bond,  covering  such  money,  should  have  been  given.42 
The  sureties  on  the  officer's  general  bond  are  not  liable  for  any 
delinquency  in  the  performance  of  such  new  obligation.43 

"United  States  v.  Tingey,  5  Pet.  115;  United  States  v.  Bradley,  10 
Pet.  360. 

88  United  States  v.  Rogers,  28  Fed.  Rep.  607. 

"  Sooy  v.  State,  38  N.  J.  L.  324. 

"People  v.  Collins,  7  Johns.  554;  State  v.  Harvey,  57  Miss.  863;  Potter 
v.  State,  23  Ind.  550:  Crawford  v.  Howard,  9  Ga.  314. 

"State  v.  Corey,  16  Ohio  St.  17;  People  v.  Moon,  3  Scam.  (111.)  123; 
State  v.  Johnson.  55  Mo.  80;  United  States  v.  Cheeseman,  3  Saw.  424; 
State  v.  Younge,  23  Minn.  551;  Henderson  v.  Coover,  4  Nev.  429;  Lyman 
v.  Conkey,  1  Met.  317;  Williams  v.  Morton,  38  Me.  52;  Commonwealth  v. 
Toms,  45  Pa.  St.  408;  Milwaukee  Co.  v.  Ehlers,  45  Wis.  281;  Milwaukee 
Co.  v.  Pabst,  70  Wis.  352 ;  White  v.  East  Saginaw,  43  Mich.  567 ;  Briton  v. 
Fort  Worth,  78  Tex.  227;  State  v.  Bateman,  102  N.  Car.  52. 

"  Redwood  Co.  v.  Tower,  28  Minn.  45 ;  Morrow  v.  Wood,  56  Ala.  3. 

"Columbia  Co.  v.  Massie,  31  Oreg.  292;  Anderson  v.  Thompson,  10 
Bush.  132;  County  Board  v.  Bateman,  102  N.  Car.  52;  Cartly  v.  Allen,  56 
Ala.  198. 


220  suretyship  and  guaranty.  (ch.  12 

§  311.  Sureties  are  Liable  Only  for  Their  Principal's 
Official  Acts. — For  all  defaults  of  the  officer  within  the  limit 
of  what  the  law  authorizes  or  enjoins  upon  him,  as  such  officer, 
the  sureties  are  bound ;  but  they  are  not  bound  for  acts  which 
are  not  official,  that  is,  done  in  his  official  capacity.44 

In  the  assumption  of  duties  not  belonging  to  his  office,  or  the 
neglect  of  other  officers  in  the  discharge  of  other  duties,  he  can- 
not extend  the  sureties'  liability  beyond  the  terms  of  his  under- 
taking for  which  the  sureties  engaged  to  see  completed.45  The 
sureties'  liabilities  cannot  be  enlarged  by  the  acts  of  their  prin- 
cipal.46 

§  312.  Subsequently  Imposed  Duties. — Duties  not  yet  ex- 
isting and  not  germane  to  the  office  are  not  within  the  contem- 
plation of  the  sureties  on  the  official  bond,  nor  properly  covered 
by  their  obligation;  hence,  sureties  are  not  liable  for  subse- 
quently imposed  duties.47  Thus,  where  the  principal  gives  a 
bond  for  the  faithful  performance  of  his  duties  as  collector  for 
a  certain  number  ef  townships,  and  the  bond  is  afterwards 
altered  so  as  to  embrace  another  township  without  the  consent 
of  the  sureties,  they  are  discharged  for  money  subsequently  col- 
lected and  embezzled  by  the  officer.48 

§  313.  Subsequently  Imposed  Duties  by  the  Legisla- 
ture.— Sureties  signing  the  bond  of  a  public  officer,  have  within 
contemplation  all  changes  that  may  be  made  by  law  as  to  the 

"People  v.  Hilton,  36  Fed.  Rep.  172;  Orton  v.  Lincoln,  156  111.  499; 
State  v.  Moore,  56  Neb.  82;  People  v.  Pennoek,  60  N.  Y.  421;  Scott  v. 
State,  46  Ind.  203 ;  State  v.  Bower,  72  Mo.  387 ;  Heidenheimer  v.  Brent,  59 
Tex.  533;  People  v.  Lucas,  93  N.  Y.  585 ;  Webb  v.Auspach,  3"  Ohio  St.  iih!; 
Ward  v.  State,  81  N.  Y.  406;  Leitch  v.  Taylor,  7  Barn.  &  Cr.  491. 

"  People  v.  Pennoek,  60  N.  Y.  421 ;  Supervisors  v.  Bates,  17  N.  Y.  242. 

"People  v.  Toomy,  122  111.  308;  Howard  Co.  v.  Hill,  88  Md.  111. 

41  Gausscn  v.  United  States,  97  U.  S.  584;  Converse  v.  United  States,  21 
How.  463;  Commonwealth  v.  Holmes,  25  Gratt.  771;  White  v.  East  Sagi- 
naw, 43  Mich.  587;  Lafayette  v.  James,  d2  Ind.  240;  Mailing  Union  v. 
Graham,  L.  R.  5  C.  P.  201. 

"Miller  v.  Stewart,  9  Wheat.  680. 


§  314)        BONDS  OF  PUBLIC  OFFICERS,  ETC.  221 

officer's  duties,  and  are  liable  for  bis  defaults  after  such  addi- 
tional obligations.49  There  is  a  difference  between  the  contract 
of  public  officers  and  the  State,  and  the  contract  between  indi- 
viduals. In  the  contracts  of  individuals  no  alteration  can  be 
made  without  mutual  consent  of  both  parties.  In  the  case  of  a 
public  officer  and  the  State,  the  legislature  has  power  at  any 
and  all  times  to  change  the  duties  of  officers,  and  the  continued 
existence  of  that  power  is  known  to  the  officer  and  his  sureties, 
and  the  officer  accepts  the  office  and  the  sureties  execute  the 
bond  with  this  knowledge ;  the  power  of  the  legislature  to  change 
his  duties  enters  into  and  becomes  a  part  of  his  contract.50  Thus, 
it  is  said  the  legislative  extension  of  the  time,  for  paying  over 
taxes,  of  three  weeks  does  not  discharge  the  sureties  on  the  tax 
collector's  bond.51  So  the  sureties  on  a  sheriff's  bond  are  liable 
for  defaults  of  their  principal,  for  the  performance  of  new  duties 
created  after  the  bond  was  executed.52  The  only  limitation  to 
this  rule  is  that  the  new  duties  imposed  shall  be  of  the  same 
general  nature  and  character  as  the  existing  duties.53 

§  314.  Th*e  State  is  Not  Responsible  foe  Its  Officers' 
Acts. — ^Neither  the  neglect  or  failure  of  the  government  to  dis- 
charge some  duty  to  a  third  party,  nor  its  neglect  or  laches  in 
enforcing  a  compliance  with  the  bond's  conditions,  will  release 
the  sureties  from  their  obligation.54  Any  neglect  of  a  public 
officer  gives  his  sureties  no  rights  against  the  State  and  affords 
them  no  excuse  for  not  performing  their  obligation  according 

44  Dawson  v.  State,  38  Ohio  St.  1;  Priekett  v.  People,  88  111.  115. 

80  People  v.  Vilas,  36  N.  Y.  459;  Colter  v.  Morgan,  12  B.  Mon.  278; 
Mooney  v.  State,  13  Mo.  7;  People  v.  Backus,  117  N.  Y.  196;  Cambridge  v. 
Fifield,  126  Mass.  428;  Mahaska  Co.  v.  Ingalls,  14  Iowa,  170;  Scott  Co.  v. 
Ring,  29  Minn.  398.  Compare  Pybus  v.  Gibbs,  6  El.  &  Bl.  903;  United 
States  v.  Kirkpatrick,  9  Wheat.  720;  Bartlett  v.  Atty.-Gen.,  Park,  277. 

"People  v.  McHatton,  2  Gil.  (111.)  732.  See,  also,  Kindle  v.  State,  7 
Blackf.  (Ind.)  566;  State  v.  Carleton,  1  Gill  (Md.),  249.  Compare  King 
Co.  v.  Ferry,  5  Wash.  536. 

M  Mooney  v.  State,  13  Mo.  7. 

"People  v.  Vilas,  36  N.  Y.  459;  White  v.  Fox,  22  Me.  341. 

M  United  States  v.  Witten,  143  U.  S.  76 ;  Hart  v.  United  States,  95  U.  S. 
316;  Mintern  v.  United  States,  106  U.  S.  437. 


222  SUEETYSHIP    AND    GUARANTY.  (Ch.  12 

to  its  terms.53  The  State  is  not  responsible  for  acts  of  its  offi- 
cers, and  the  officer's  sureties  enter  upon  their  contract  Avith  full 
knowledge  of  this  principle  of  law.56  Thus,  the  failure  of  the 
governing  body  to  compel  a  county  treasurer  to  make  prompt 
settlement,  and  he  defaults,  does  not  discharge  his  sureties;57 
for  such  governing  body  is  not  responsible  for  the  wrongful  acts 
of  its  officer.58  So  the  sureties  on  the  officer's  bond  cannot  suc- 
cessfully plead  the  neglect  or  failure  of  the  State  to  require  their 
principal  to  render  an  account  or  remove  him  for  neglect  as 
required  of  such  officer  by  law,  as  a  defense  to  their  liability 
upon  a  subsequent  breach  of  the  bond.59  Thus,  the  default  of 
a  county  treasurer  is  not  excused  by  the  neglect  of  the  county 
board,  and  it  cannot  be  interposed  as  a  defense  by  his  sureties.60 

§  315.  Foegeby  of  Peioe  Sueety's  Name. — The  fact  that 
the  name  of  one  of  the  sureties  to  an  officer's  bond  has  been 
forged,  unknown  to  the  obligee  when  the  bond  was  accepted,  will 
not  discharge  the  surety  who  subsequently  executes  the  bond  in 
ignorance  of  such  forgery.61  And  the  fact  that  the  surety  whose 
name  was  forged  gives  him  no  information  of  the  fact,  where 
the  condition  upon  which  the  surety  signs  is  unknown  to  the 

"Hart  v.  United  States,  95  U.  S.  316:  Mintern  v.  United  States,  106 
U.  S.  437. 

■"Britten  v.  Fort  Worth.  78  Tex.  227;  Boardman  Tower  v.  Flagg.  70 
MinnT33"8 ;  BodnV  Uo "v.^onesT  54~Iowa,  698:  Waseca  Co.  v.  Sheehan.  42 
Minn  57;  Stern  v.  People.  102  111.  540:  Kewaunee  v.  Kniper,  37  Wis.  496; 
B  trt  v.  United  States.  95  U.  S.  316. 

,:  Crawn  v.  Commonwealth,  84  Va.  282. 

"Gibson  v.  United  States.  8  Wall.  269;  Jones  v.  United  States.  18  Wall. 

Manly  v.  Atchison.  9  Kan.  358;   Commonwealth  v.  Wolbert,  6  Binn. 

.292;  People  v.  Russell.  4  Wend.  570:  Looney  v.  Hughes.  26  N.  Y.  514. 

■United  States  v.  Kirkpatrick,  9  Wheat  720:  United  States  v.  Van- 
rand  t.  11  Wheat.  184:  United  States  v.  Boyd.  15  Pet.  187. 

80  Coons  v.  People,  76  111.  391  ;  Cawley  v.  People,  95  111.  249. 

tern  v.  People.  102  111.  340.  In  Seely  v.  People.  27  111.  173.  it  was 
held  where  a  party  executes  a  bond  as  surety  with  another  whose  name  has 
been  forged,  he  will  not  be  liable:  but  in  Stoner  v.  Millikin,  85  111.  218, 
that  case  is  overruled.  And  the  case  of  People  v.  Oregon.  27  111.  29.  in  so 
far  as  it  makes  distinction  in  this  regard  between  commercial  paper  and 
other  instruments,  it  in  overruled  in  Chicago  v.  Gage,  95  111.  593. 


§  310)        BONDS  OF  PUBLIC  OFFICERS,  ETC.  22S 

oblige©  or  officer  to  whom  the  bond  is  given  at  the  time  he 
accepts  it  does  not  discharge  him.62 

And  if  the  forged  name  is  erased  or  obliterated  before  the 
delivery  of  the  bond,  the  rights  of  the  obligors  therein  will  not  be 
altered  or  their  liability  affected  thereby,  and,  of  course,  the 
surety  is  liable.63  Because  the  surety  would  have  been  liable 
had  the  erasure  not  been  made.  The  obliterating  the  forged 
name  in  no  respect  altered  the  rights  or  affected  his  liability. 
Where  one  of  two  innocent  parties  must  be  the  loser  by  the 
deceit  or  fraud  of  another,  the  loss  must  fall  on  him  who  employs 
and  puts  trust  and  confidence  in  the  deceiver,  and  not  on  the 
other.64 

§  316.  Money  Lost  ok  Stolen  From  Principal. — The 
general  rule  is  that  money  lost  or  stolen  from  the  principal  is  no 
exception  to  the  rule  that  binds  the  surety;  so  for  such  money 
the  sureties  are  liable.65  Thus,  the  loss  of  public  moneys  by  a 
receiver  and  disburser  of  it,  feloniously  taken  from  him  without 
fault  on  his  part,  does  not  discharge  him  or  his  sureties  from 
the  obligation  on  his  bond  ;66  the  same  rule  applies,  though  the 
receiver  has  been  robbed,67  or  murdered.68 

The  loss  of  money  by  theft  or  otherwise,  by  a  public  officer,  is 
no  excuse  for  non-performance  of  his  obligation,  and  his  sureties 
are  liable  for  such  in  paying  ovei  the  money.69 

"State  v.  Baker,  64  Mo.  167;  State  v.  Pepper,  31  Ind.  76.  See,  also, 
Dair  v  United  States,  16  Wall    1  ;  Selser  v.  Brooks,  3  Ohio  St.  302 

"York  Co.  Ins.  Co.  v.  Brooks,  51  Me.  506;  Stoner  v.  Milliken,  85  111.  218. 

"Stoner  v.  Millikin.  85  111.  218;  Hern  v.  Nichols,  1  Salk.  289. 

"United  States  v.  Preseott,  3  How.  578;  United  States  v.  Morgan,  11 
How.  160. 

"United  States  v.  Dashiel,  4  Wall    182. 

"Boyden  v.  United  States,  13  Wall.   17. 

"United  States  v.  Watts.  1  N.  Mex.  553. 

"Hancock  v.  Hazzard,  i2  Cush.  112;  German  Am.  Bank  v.  Auth,  87  Pa. 
St.  419;  Union  Town  v.  Smith,  39  Iowa,  9:  State  v.  Harper,  6  Ohio  St. 
607;  State  v.  Moore.  74  Mo.  413:  Rock  v.  Stringer,  36  Ind.  346;  Board  v. 
Jewell,  44  Minn  427:  State  v.  Lanier.  31  La.  Ann.  423:  B,p^s  y.  Kt.at.e.  4ft^ 
Tex.  10;  Providence  v.  McCachron,  35  N.  J  L.  328.  affirming  33  N.  J.  L. 
339;  Taylor  Town  v.  Morter,  37  Iowa,  530;  Thompson  v   Broad,  30  111.  99; 


224:  SURETYSHIP  AND  GUARANTY.  (Ch.  12 

The  condition  of  the  bond  is  to  keep  safely  the  public  money, 
and  such  contract  is  absolutely  without  any  condition,  expressed 
or  implied,  and  nothing  but  the  payment  of  all  the  money  when 
required  can  discharge  the  bond.  The  responsibility  of  the 
officer  is  not  determined,  by  the  law  of  bailment,  but  by  the  condi- 
tion of  his  bond,  which  provides  that  the  officer  will  account  for 
and  pay  over  the  moneys  to  be  received.  Hence,  if  the  money 
is  lost  or  stolen,  the  principal  and  his  sureties  are  liable.70 

This  general  rule  is  denied  in  several  cases.  Thus,  in  Maine 
it  is  held  that  if,  without  fault  or  negligence  on  the  part  of  the 
officer,  he  is  violently  robbed  of  money  belonging  to  the  State 
or  county,  he  nor  his  sureties  are  liable  for  the  money  taken.71 
And  so  in  Alabama,  if  a  tax  collector,  without  negligence  on  his 
part,  is  robbed  of  the  public  moneys  by  irresistible  force,  which 
he  could  not  have  foreseen  or  guarded  against,  he  is  not  liable 
for  such  moneys  feloniously  taken  from  him.72 

§  317.  Depositing  Public  Money  in  Bank. — When  a  pub- 
lic officer  deposits  the  money  received  in  a  bank,  he  becomes  a 
creditor  and  the  bank  a  debtor,  the  same  as  if  it  was  his  own 
money.  His  office  gives  him  no  right  to  thus  deposit  the  money. 
So  where  a  public  officer  deposits  money  in  a  bank  without 
authority  of  law,  and  the  bank  thereafter  fails  and  the  money  is 
lost,  the  officer  and  his  sureties  are  liable  for  the  same.73  And 
the  fact  that  the  county  does  not  provide  a  safe  or  suitable  place 
where  the  money  of  the  officer  may  be  kept,  will  not  release  him 

Wood  v.  School  Dist.,  10  Neb.  293;  State  v.  Nevin,  19  Nev.  162.  See,  also, 
Monticello  v.  Lowell,  70  Me.  437. 

"Ingles  v.  State,  61  Ind.  212;  Muzzy  v.  Shattuck,  1  Denio,  233;  Com- 
monwealth v.  Conly,  3  Pa.  St.  372;  United  States  v.  Thomas,  15  Wall.  337; 
State  v.  Harper,  6  Ohio  St.  607. 

"Cumberland   v.   Pennell,   69   Me.   35.. 

"State  v.  Houston,  78  Ala.  576;  83  Ala.  361.  See,  also,  Houghton  v. 
Freeland,  26  Grant,  Ch.  500;  Albany  Co.  v.  Dorr.  25  Wend.  446;  United 
States  v.  Adams,  24  Fed.  Rep.  348 ;  Ross  v.  Hatch,  5  Iowa.  149. 

"Supervisors  v.  Kaine,  39  Wis.  468;  State  v.  Powell,  67  Mo.  395;  State 
T.  Moore,  74  Mo.  413. 


§    318)  BONDS    OF    PUBLIC    OFFICERS,    ETC.  225 

from  liability  if  lie  deposits  it  in  bank  when,  by  reason  of  the 
failure  of  the  bank,  it  is  lost.74 

In  such  case  the  bank  is  the  agent  of  the  officer,  and  not  of 
the  State  or  county,  and  failure  of  the  bank  and  loss  of  money 
make  the  officer  and  his  sureties  liable.75 

In  one  or  two  States  this  rule  has  been  changed.  Thus,  in 
South  Carolina  such  public  officer  is  not  liable  for  the  loss  of 
public  funds  occasioned  by  the  failure  of  a  bank  which  was  in 
good  standing  at  the  time  the  money  was  placed  on  deposit  by 
him,70  thus  adopting  the  rule  applicable  to  the  agent  of  a  cor- 
poration.77 And  in  Wyoming,  the  sureties  are  not  liable  for 
moneys  of  a  public  treasurer  deposited  in  a  bank  which  failed, 
where  the  treasurer  is  without  fault.78 

§  318.  Making  Profits  on  Public  Funds. — An  officer  has 
no  right  to  make  profits  on  public  funds.  So  where  he  receives 
interest  for  the  loan  or  use  of  such  funds,  such  interest  will  not 
belong  to  him.79  So  where  an  officer  deposits  the  funds  in  a 
bank  and  draws  interest  on  them,  lie  and  his  sureties  are  liable 
for  the  interest  so  received  by  him  from  the  bank.80  And  so 
where  a  city  treasurer  loans  money  to  the  city  under  direction 
of  the  council,  the  sureties  on  his  bond  are  liable  for  the  interest 
collected  for  which  he  fails  to  account.81 

An  agreement  by  a  public  officer  to  deposit  money  in  a  bank 
represented  by  his  sureties,  upon  which  interest  is  to  be  allowed 
him  personally,  is  against  public  policy  and  illegal,  especially 
when  in  violation  of  a  statute.82 

MLowry  v.  Polk  Co.,  51  Iowa,  50. 

"Ward  v.  School  Dist.,  10  Neb.  293;  Myers  v.  Kiowa  Co.,  60  Kan.  189 i 
Hart  v.  Poor  Guardians,  81%  Pa.  St.  466;  Haven  v.  Lathene,  75  N.  Car. 
505;  w^on  v   WWtP  rr\ .  'MJszJ^J 

"York  Co.  v.  Watson,  15  S.  Car.  1. 

"  Chicago,  etc.,  R.  R.  Co.  v.  Bartlett,  120  111.  603. 

"Roberts  v.  Laramie  County   ( Wyo.),  56  Pac.  Rep.  915. 

n  Richmond  Co.  v.  Wandel,  6  Lans.  ( N.  Y. )  33 ;  Chicago  v.  Gage,  95  111. 
693;  Cassady  v.  Trustees,  105  111.  561;  Lewis  v.  Dwight,  10  Conn.  95. 

"Wheeling  v.  Black,  25  W.  Va.  266;  Perry  v.  Horn,  22  W.  Va.  381. 

"Hunt  v.  State,  124  Ind.  306.  Compare  Renfroe  v.  Colquitt,  74  Ga.  618; 
State  v.  Blakemore,  7  Heisk.  638;  United  States  v.  Broadhead,  127  U.  S.  112. 

■  Ramsay  v.  Whitbeck,  183  111.  550. 

'15 


220  SUEETYSHIP  AND  GUARANTY.  (Ch.  12 

An  illegal  agreement  by  a  public  officer  to  receive  interest  on 
public  funds  deposited  in  a  bank  represented  by  his  sureties, 
may  be  tacit  as  well  as  express,  and  its  existence  may  be  estab- 
lished by  proof  of  facts  and  circumstances  showing  coincidences 
which  can  be  accounted  for  upon  no  other  assumption  than  that 
such  an  original  understanding  existed.83 

§  319.  Interest  Recovered  After  Breach. — Until  there 
is  a  breach  of  the  condition  of  the  bond  which  renders  the  prin- 
cipal and  his  sureties  liable,  there  can  be  no  right  to  interest  on 
the  account  of  such  breach.  And  the  earliest  moment  at  which 
any  one  becomes  liable  on  account  of  the  breach,  is  the  time  of 
demand  for  the  amount  due  or  the  beginning  of  a  suit  to  recover 
the  amount  which  is  a  sufficient  demand  ;84  or  at  the  time  when, 
by  implication  of  law  or  by  express  terms  in  the  bond,  it  is  the 
duty  of  the  officer  to  pay  over  the  money  to  the  owner  without 
previous  demand  on  his  part.85 

§  320.  Liability  of  Sureties  as  to  Payment  of  Penal- 
ties.— Penalties  are  never  extended  by  implication,  nor  are 
sureties  held  beyond  what  is  clearly  within  the  scope  and  pur- 
pose of  their  undertaking.  And  where  a  statute  provides  for  a 
penalty  to  be  incurred  for  breach  of  the  bond,  and  does  not  by 
express  terms  nor  by  implication  make  the  sureties  liable  for  it, 
they  are  not  responsible  for  such  penalty.86 

An  officer  and  his  sureties  are  not  liable  upon  his  bond  for 
performance  of  duties  not  therein  set  forth,  but  he  is  liable 
personally  for  the  non-performance  of  his  duty  prescribed  by 
statute  to  the  party  injured  to  the  extent  of  the  damage  re- 

■  Ramsay  v.  Whitbeck,  183  111.  550. 

M  United  States  v.  Curtis,  100  U.  S.  119;  United  States  v.  Poulson,  30 
Fed.  Rep.  231. 

"Dodge  v.  Perkins,  9  Pick.  368;  United  States  v.  Arnold,  1  Gall.  348; 
Bank  v.  Smith,  12  Allen,  293;  Leighton  v.  Brown,  98  Mass.  515;  Frink  v. 
Express  Co.,  82  Ga.  33;   Benchfield  v.   Haffey,  34  Kan.  42. 

"Caapen  v.  People,  6  111.  Anp.  28:  Brooks  v.  Governor,  17  Ala.  806;  State 
v.  Baker,  47  Miss.  88;  Morotz  v.  Ray.  75  N.  Car.  170.  Compare  Wilson  v. 
£tate,  1  Lea,  316;  Wood  v.  Farvell,  50  Ala.  546. 


§    321)  BONDS    OF    PUBLIC    OFFICERS,    ETC.  227 

^ceivecL6*  Thus,  the  sureties  on  a  county  clerk's  bond  are  not 
liable  for  his  acts  in  issuing  a  license  to  marry  to  a  minor  in 
violation  of  law.88  The  statute  may  provide  for  the  collection 
of  the  penalty  from  the  principal  and  his  sureties,  in  which 
case  the  sureties  are  liable  for  the  breach,  including  the  pen- 
alty.89 

§  321.  Estoppel  by  Judgment. — A  judgment  is  conclusive 
of  what  it  necessarily  decides  only.  When  introduced  in  evi- 
dence as  an  estoppel  it  cannot  be  explained  or  varied  by  parol 
evidence.90  So  a  judgment  fairly  obtained  against  one  for 
whom  another  has  given  an  indemnity,  is  evidence,  and  conclus- 
ive in  a  suit  on  the  indemnity.91  But  in  a  suit  on  an  indemnity 
bond  it  must  be  shown  that  the  defendant  gave  the  indemnity, 
that  the  judgment  was  fairly  obtained,  and  that  it  was  ren- 
dered for  a  matter  to  which  the  indemnity  applied.  If  this  is 
not  shown,  the  judgment  is  not  conclusive.92  The  general  doc- 
trine that  the  judgment  against  the  principal  is  conclusive 
against  the  surety  is  founded  on  special  statutes  or  a  peculiar 
form  of  the  bond.93  Thus,  where  the  sureties  by  express  terms 
of  their  agreement  or  by  reasonable  implication  from  the  very 
nature  and  intent  of  their  obligation  have  stipulated  to  pay  dam- 
ages and  costs  which  may  be  recovered  against  their  principal, 
or  otherwise  to  abide  the  decree  or  judgment  of  a  court  against 
the  principal,  then  they  are  bound  by  the  judgment,  though  they 
have  no  notice  of  the  suit.94 

"  Holt  v.  McLean,  75  N.  Car.  347. 

"Brooks  v.  Governor,  17  Ala.  806. 

" Tappan  v.  People,  67  111.  339. 

"Eaton  v.  Harth,  45  111.  App.  355;  Ingersoll  v.  Seatoft,  102  Wis.  476; 
Kilson  v.  Farwell,  132  111.  337. 

91  Clark  v.  Carrington,  7  Cranch,  308 ;  Drummond  v.  Preston,  12  Wheat. 
515;   Levick  v.  Norton,  51   Conn.  461. 

"  New  Haven  v.  Chidsey,  68  Conn.  397. 

"Commonwealth  v.  Barrows,  46  Me.  497;  Dane  v.  Gilmer,  51  Me.  547; 
Dennie  v.  Smith,  129  Mass.  143;  Tracy  v.  Goodwin,  5  Allen,  409;  Chamber- 
lain v.  Godfrey,  36  Vt.  380 ;  Tate  v.  James,  50  Vt.  124. 

"  Chamberlain  v.  Godfrey,  36  Vt.  380. 


225  SURETYSHIP  ABU  GUARANTY.  (Ch.  12 

Although  there  is  a  conflict  of  authority  on  this  subject,  estop- 
pel of  sureties  by  judgment  against  their  principal,  it  seems 
to  be  the  better  opinion  that,  except  in  cases  where,  upon  a  fair 
construction  of  the  contract,  the  surety  may  have  undertaken 
to  be  responsible  for  the  result  of  a  suit,  or  where  he  is  made 
privy  to  the  suit  by  notice,  and  an  opportunity  is  given  to  him  to 
defend  it.  a  judgment  against  the  principal  alone  is.  as  a  gen- 
eral rule,  evidence  of  the  fact  of  its  recovery  only,  and  not  evi- 
dence of  any  facts  for  which  it  was  necessary  to  find,  in  order 
to  recover  such  judgment/' 

Of  course  one  may  agree  to  stand  in  the  place  of  another,  and 
to  be  so  fully  answerable  for  his  debt  or  unlawful  act  as  that  a 
judgment  against  the  latter  shall  conclude  the  former  as  to  the 
amount  of  such  debt  or  damage.96 

§  322.  Sheriffs  and  Constables. — The  liability  of  sheriffs 
and  constables  for  their  defaults  is  fixed  by  the  terms  of  the 
bond  and  the  statute  in  force  at  the  time  of  the  execution  and 
delivery  of  the  bond.97  But  the  sureties  are  not  liable  for  acts 
of  the  officer  before  the  time  when  the  bond  took  effect.98 

§  023.  Scope  of  Liability. — Constables  and  sheriffs  are 
liable  for  defaults  committed  under  color  or  by  virtue  of  their 
office.39  But  their  sureties  are  not  liable  for  acts  of  the  officer 
which  are  not  a  part  of  his  official  duties.100 

A  sheriff  does  not  act  officially  in  sending  photographs  of  an 
accused  person,  with  description  of  such  person,  to  various  indi- 

"DeGreiff  v.  Wilson,  30  N.  J.  Eq.  435:  Pico  v.  Webster.  14  Cal.  202; 
Taylor  v.  Johnson.  17  Ga.  521;  State  v.  Martin.  20  Ark.  629;  GiJlinan  v, 
Stron?.  64  Pa.  St.  242:  Whitehead  v.  Woolfolk.  3  La.  Ann.  43;  Lucas  v. 
Governor.  6  Ala.  826:  Shelby  v.  Governor,  2  Blackf.  (IncU  BB9;  Grares  v, 
Bulkeley.  25  Kan.  249:    Fay  v.  Edministon,  25  Kan.   439. 

**  l.-vick  v.  Norton.  51  Conn.  461, 

"  Freudenstein  v.  McNier,  SI  III.  208. 

"  Bryan  v.  Kelly,  85  Ala.  569. 

"Lowell  t.  Parker.  10  Met.  309:  Jewell  v,  Mills,  3  Buah,  62.  Compare 
Clmncj  v.  Kenworthy,  74  Iowa.  740. 

"■  People  v.  Foster,  133  III.  496. 


§    323)  BONDS    OF    PUBLIC    OP^FICERS,    ETC.  229 

viduals  and  police  departments,  whereby  the  accused  is  held  out 
to  the  world  as  a  criminal ;  hence  the  sheriff  and  his  sureties 
are  not  liable  on  his  official  bond  for  such  acts,  though  the  officer 
may  be  subject  to  a  libel  suit.  If  a  sheriff  deems  it  necessary 
to  prevent  the  escape  of  an  accused  person,  he  may  take  the 
prisoner's  photograph,  and  ascertain  his  height,  weight  and 
other  physical  peculiarities,  and  his  name,  residence,  place  of 
birth,  and  the  like,  without  incurring  liability  on  his  official 
bond  therefor,  his  acts  being  without  personal  violence  to  the 
prisoner.101 

It  is  the  duty  of  the  officer  to  search  the  prisoner,  and  take 
from  him  all  money  or  other  articles  that  may  be  used,  as  evi- 
dence against  him  at  the  trial.102  The  officer  may  also  take 
from  the  prisoner  any  dangerous  weapons,  or  anything  else  that 
the  official  may,  in  his  discretion,  deem  necessary  to  his  own  or 
the  public  safety,  or  for  the  safe-keeping  of  the  prisoner,  and  to 
prevent  his  escape ;  and  such  property,  whether  goods  01  money, 
is  held  subject  to  the  order  of  the  court.103  And  the  officer  may 
not  only  take  any  deadly  weapon  he  may  find  on  the  prisoner, 
but  also  money  or  other  articles  of  value  found  upon  him,  though 
not  connected  with  the  crime  for  which  he  was  arrested,  and 
which  cannot  be  used  as  evidence  on  the  trial,  by  means  of  which 
if  left  in  his  possession,  he  may  procure  his  escape  or  obtain 
tools,  implements  or  weapons  with  which  to  effect  his  escape.104 
Sureties  are  liable  for  the  official  acts  of  their  principal,  but  not 
for  his  acts  which  are  not  a  part  of  his  official  duties.  Thus, 
where  a  sheriff  goes  into  another  State  and  falsely  represents 
that  he  has  extradition  papers  and  arrests  a  person,  his  sureties 
are  not  liable  for  such  act,  but  they  are  liable  for  his  acts  after 
coming  back  to  his  own  State.105 

101  Firestone  v.  Rice,  71  Mich.  377;  15  Am  St.  Rep.  266;  Diers  v.  Mallon, 
46  Neb    121;  50  Am.  St.  Rep.  598. 

"'Rusher  v.  State,  94  Ga.  363;  47  Am.  St.  Rep.  175. 

M  Closson  v.  Morrison,  47  N.  H.  482 ;  93  Am.  Dec.  459 ;  Commercial  Ex- 
change Bank  v,  McLeod,  65  Iowa,  665;  Reifsnider  v.  Lee  44  Iowa,  101; 
Holker  v.  Hennessy,  141  Mo    527  ;   64  Am.  St.  Rep.  524. 

"•  Closson  v.  Morrison,  47  N.  H  482;  Holker  v.  Hennessy,  141  Mo.  527. 

"•  Kendall  v.  AJeshire,  28  Neb.  709. 


230  SURETYSHIP  AND  GUARANTY.  (Cll.  12 

§  324.  Levying  on  a  Stranger's  Property  and  on  Prop- 
erty Exempt. — The  sureties  of  sheriffs  and  constables  under- 
take that  their  principal  shall  faithfully  perform  all  duties 
imposed  upon  their  principal  by  law  as  such  officers.  It  is  as 
much  their  duty  to  refrain  from  committing  wrongful,  oppress- 
ive and  injurious  acts  under  color  of  their  office  as  it  is  to  per- 
form their  affirmative  official  acts  in  a  proper  manner.  While 
there  are  a  few  decisions  which  hold  the  opposite  view,  yet  the 
great  weight  of  authority  is  that  a  levy  by  such  officers  upon 
property  of  a  third  person,  is  a  breach  of  their  bond  for  which  the 
sureties  are  liable:106  and  it  makes  no  difference  whether  the  offi- 
cer  makes  the  levy  or  attachment  knowingly  or  by  mistake.107 
And  the  same  rule  applies  when  the  officer  levies  upon  and  sells 
exempt  property,  and  his  sureties  are  liable.108 

In  some  jurisdictions  it  is  held  that  the  wrongful  levy  and 
sale  of  property  of  a  stranger  under  an  execution  against  another 
person  is  a  mere  trespass,  for  which  the  sureties  of  the  officer 
are  not  liable.109 

The  general  rule  applies  to  United  States  marshals  who  levy 

109  Wiehler  v.  People,  68  111.  App.  282 ;  Norwalk  v.  Ireland,  68  Conn.  1 ; 
Archer  v.  Noble,  3  Me.  418;  Brunott  v.  McKee,  6  Watts  &  S.  513;  Van  Pelt 
v.  Little,  14  Cal.  194;  Inhabitants  v.  Wilson,  13  Gray,  385;  State  v.  Jen- 
nings, 4  Ohio  St.  418 ;  Horan  v.  People,  10  111.  App.  21 ;  State  v.  Fitzpatrick, 
64  Mo.  185;  Sangster  v.  Commonwealth,  17  Gratt.  124;  Turner  v.  Killian, 
12  Neb.  580;  Hubbard  v.  Elden,  43  Ohio  St.  380;  People  v.  Merscreau,  74 
Mich.  687 ;  Carmack  v.  Commonwealth,  5  Binn.  184 ;  Tracy  v.  Goodwin, 
5  Allen,  409;  Commonwealth  v.  Stockton,  5  T.  B.  Mon.  192;  Jewell  v.  Mills, 
3  Bush,  62;  State  v.  Moore,  19  Mo.  366;  Charles  v.  Hoskins,  11  Iowa,  329; 
Holliman  v.  Carroll,  27  Tex.  23;  Marfins  v.  Willard.  12  Wash.  52S ;  Hersey 
v.   Marty.  61    Minn.  430;    United  States  v.  Hine,  3  MacAr.  27. 

107  Turner  v.  Killian,  12  Neb.  589;  Holliman  v.,  CarjlU.  SJS^  ^  Van 
Pelt  v.  Little,  14  Cal.  194;  United  States  v.  Hine.  3  MacAr.  27;  State  v. 
Jennings,  4  Ohio  St.  419;  Sangster  v.  Commonwealth,  17  Gratt.  124;  Jewell 
v.  Mills,  3  Bush,  62;  Commonwealth  v.  Stockston,  5  T.  B.  Mon.  192. 

108  Hersey  v.  Marty,  61  Minn.  430;  Casper  v.  People,  6  111.  App.  28; 
Cole  v.  Cranford,  69  Tex.  124:   State  v.  Carroll,  9  Mo.  App.  275. 

109  People  v.  Lucas,  93  N.  Y.  585;  Carey  v.  State,  34  Md.  105:  State  r. 
Brown,  11  Ired.  (N.  Car.)  141;  State  v.  Mann,  21  Wis.  684;  Taylor  v. 
Parker,  43  Wis.  78;  Stockwell  v.  Robinson,  0  Houst.  313:  State  v.  Conover, 
28  N.  J.  L.  224.     Compare  Dishneau  v.  Newton,  91  Wis.  199. 


§  325)        BONDS  OF  PUBLIC  OFFICERS,  ETC.  231 

on  a  stranger's  property,110  and  the  same  rule  will  apply  to 
coroners  acting  as  sheriffs.111 

§  325.  Officers  Liable  for  Ministerial  Duties. — The 
officer  and  his  sureties  are  liable  for  defaults  arising  out  of  the 
performance  of  his  ministerial  duties,  which  include  those  acts 
which  the  laws  authorize  him  to  perform,  and  which  are  consid- 
ered to  come  within  the  scope  of  his  office.112  The  officer  is  net 
civiily  liable  for  judicial  acts.113  But  he  and  his  sureties  are 
liable  for  his  acts  for  falsely  certifying  as  true,  bills  rendered 
against  the  county,  as  such  action  is  a  misfeasance;114  and  in 
general  for  overpayment  exacted  by  him  on  process,115  except 
when  he  is  honestly  mistaken  in  making  such  charge;116  for 
omitting  imperative  statutory  requirements;117  for  a  failure  to 
levy;118  for  an  escape  of  prisoner;119  for  failure  to  return  pro- 
cess;120 to  deliver  goods  to  the  defendant  on  discontinuance  of 
the  action;121  for  non-payment  of  money  collected  in  his  official 
capacity;122  for  loss  of  attachment  by  his  neglect  or  voluntary 
act;123  for  damages  to  property  seized,  caused  by  his  neglect;1"4 
for  failure  to  sell  property  levied  upon  ;125  for  accepting  insuffi- 
cient sureties  on  a  replevin  bond;126  for  non-payment  of  rent, 
with  money  received  for  sale  of  tenant's  goods.127 

""Lammon  v.  Feusier,  111  U.  S.  17. 
111  Tiernan  v.  Haw,  49  Iowa,  312. 

113  State  v.  Powell,  44  Mo.  436;  McGraw  v.  Governor,  19  Ala.  89. 
1,3  Scott  v.  Ryan,  115  Ala.  587. 

114  People  v.  Foster,  133  111.  496. 

115  Kane  v.  Railroad  Co.,  5  Neb.  105;  Snell  v.  State.  43  Ind.  359. 
us  State  v.  Ireland.  G8  N.  Car.  300. 

mStifer  v.  State,  114  Ind.  291. 

118  Commonwealth  v.  Fry,  4  W.  Va.  721 ;  Habershaw  v.  Sears,  11  Oreg.  431. 

119  People  v.  Dikeman,  3  Abb.  App.  Dec.  520. 

120McNee  v.  Sewell,  14  Neb.  532;  Babka  v.  People.  73  111.  App.  246. 
121  Dennie  v.  Smith.  129  Mass.  143 ;  LpvjrvJtfnT^pfl^   ^  Tjjy,  p^ft. 
121  De  La  Garz  v.  Corolan,  21  Tex.JgTpSlatev.  Peterson.  L42  Mo.  526. 
U3  Commonwealth  v.  C^vItnei%"l8*~Pa.  St.  439 ;  Lyon  v.  Horner,  32  W.  Va. 
432;  Bank  v.  Potius,  10  Watts.  148. 

124  Witkowski  v.  Hern,  82  Cal.  004:  Tiernan  v.  Haw,  49  Iowa,  312. 

m  Wagmire  v.  State,  80  Ind.  67.  "   1 

138  Carter   v.    Duggan,    144   Mass.    32. 

117  Governor  v.  Fiwards,  4  Bibb,  219. 


232  SURETYSHIP    AND    GUARANTY.  (  Ch.  18 

On  the  other  hand,  he  and  his  sureties  are  not  liable  for 
money  which  he  had  no  legal  authority,  by  virtue  of  his  office, 
to  receive;128  because  it  was  not  within  the  scope  of  his  official 
duties;129  nor  are  the  sureties  liable  for  penalties  attached  to 
his  bond;130  nor  are  they  liable  for  acts  not  within  the  scope  of 
the  officer's  duty,131  that  is,  duties  not  imposed  upon  him  by 
law.132 

§  326.  Duty  to  Individuals  and  to  the  State. — At  com- 
mon law  where  the  acts  are  ministerial  and  the  officer  is  bound 
to  render  services  for  compensation  for  fees  or  salary,  he  is  liable 
for  misfeasance  or  non-feasance  to  the  party  who  is  injured  by 
them,  but  is  not  civilly  liable  for  judicial  acts.133  It  is  not 
under  his  ministerial  functions  to  preserve  the  peace.  For 
neglect  in  the  performance  of  that  duty  he  is  punishable  by  in- 
dictment, and  no  civil  action  at  common  law  therefor  lies  against 
him  by  persons  who  have  suffered  injury  from  violence  of  mobs 
or  insurrection;134  and  his  sureties  are  not  liable  for  a  wrong 
committed  by  him  in  aiding  and  abetting  a  mob  in  lynching  a 
prisoner  committed  to  his  charge.135  But.  where  he,  within  the 
scope  of  his  duties,  commits  malfeasance,  his  sureties  are  liable. 
Thus,  where  an  officer  delivers  a  prisoner,  handcuffed,  to  a 
deputy  whom  he  knows  to  be  incompetent,  and  that  a  mob  is 
likely  to  seize  and  execute  the  prisoner,  the  officer  and  his  sure- 
ties are  liable  for  such  neglect.136  And  where  a  deputy  sheriff 
makes  an  arrest  in  the  line  of  his  duty,  though  illegal  because  in 

M  Governor  v.  Wise,  1  Cranch.  142;  Heidenheimer  v.  Bre^t,  ftP  Tatl.  Sftft ; 
Turner  v.  Collier,  4  Heisk.  89. 

m  Walsh  v    People,  6  111.  App.  204. 

1,0  State  v.  Nichols.  39  Miss.  318;  State  Bank  v.  Brennan.  7  Colo.  App.  427. 

m  State  v.  Davis,  88  Mo.  585;  King  v.  Baker,  7  La.  Ann.  571;  Greenwell 
V.  Commonwealth,  78  Ky.  320. 

**■  Commonwealth  v.  Lentz.  106  Pa.  St.  643. 

"■Scott  v.  Ryan,  115  Ala.  587. 

"•  South   v.   Maryland.    18   How.   396. 

u*Cockinp  v.  Wade,  87  Md.  529. 

**A*her  v.  Oaboll,  50  Fed.  Rep.  81S. 


§  327,  328)     bonds  of  public  officers,  etc.  233 

excess  of  Lis  duty,  his  principal,  the  sheriff  and  his  sureties,  are 
liable137 

§  327.  Amount  or  Sureties'  Liability. — The  surety's  lia- 
bility is  limited  to  the  amount  named  in  the  bond,  and  he  can- 
not be  held  in  damages  for  a  larger  amount.138  So  where  the 
sureties  of  the  officer  have  paid  the  full  amount  of  the  bond  in 
damages,  they  are  no  longer  liable  on  the  bond.139  The  judg- 
ment on  the  bond  is  generally  for  the  penal  sum,140  and  the 
damages  assessed  according  to  the  finding  of  the  jury,  which 
may  not  be  the  full  amount  of  the  bond.  Of  course  the  legal 
interest  may  be  added  to  the  penalty  from  the  date  the  liability 
accrued.141 

§  328.  Liability  of  Sureties  After  Term  Expires. — The 
authorities  are  not  uniform  as  to  the  liability  of  the  sureties  for 
defaults  of  their  principal  after  his  term  expires.  One  line  of 
decisions  holds  that  where  the  officer's  time  expires,  his  sureties 
are  released  from  further  liability.  Thus,  where  a  sheriff  is 
re-elected  and  fails  to  give  a  new  bond,  his  office  becomes  vacant, 
and  his  sureties  on  his  old  bond  are  thereby  discharged  from 
liability  for  his  malfeasance  or  non-feasance  after  his  re-election 
and  failure  to  qualify.142  So  where  an  officer's  time  expires 
while  he  holds  an  execution,  and  he  is  re-elected  and  qualifies, 
and  then  did  not  return  the  execution  according  to  law,  the  sure- 
ties on  the  new  bond  are  liable,  but  not  those  on  the  first  bond.143 
And  so  where  it  is  the  duty  of  an  officer  at  the  close  of  his  term 
to  deliver  unexecuted  processes  to  his  successor,  but  he  does  not, 
and  collects  money  and  uses  it  himself,  his  sureties  are  not 
liable.144 

w  Brown  v.  Weaver,  76  Miss.  7  $  Cash  v.  People,  32  111.  App.  250 ;  Yount 
v.  Carney,  91   Iowa    559. 

188  Marcy  v.  Praeger,  34  La.  Ann.  544. 

"» Bathwell  v.  Shiffield,  8  Ga.  569. 

140  Turner  v.  Sisson,  137  Mass.  191. 

U1  Holmes  v.  Standard  Oil  Co.,  183  111.  70. 

,M  Bennett  v.  State,  58  Miss.  557. 

"'Sherrell  v.  Goodrum,  3  Humph.  419. 

a*4  State  v  Morgan,  59  Miss.  349.  See,  also,  State  v.  McCormack,  50 
Mo-  568 ;  Clark  v.  Lamb,  78  Ala.  406. 


234  SURETYSHIP  AND  GUARANTY.  (Ch.  12 

But  in  other  jurisdictions  the  sureties  are  liable  for  money 
paid  to  the  officer,  after  the  expiration  of  his  office,  for  processes 
executed,  which  came  into  his  hands  before  the  expiration  of 
his  term  of  office.145  He  must  finish  the  executions  commenced 
during  his  term  of  office.146 

Having  received  money  during  his  term  of  office,  it  is  the  offi- 
cer's duty  to  pay  it  over  to  the  proper  party,  and  if  he  does  not, 
he  and  his  sureties  are  liable  until  he  does,  notwithstanding  his 
term  of  office  has  expired.147  The  sureties  of  the  officer  are 
liable  only  for  the  acts  of  their  principal  during  the  term  of 
office  or  while  he  is  exercising  the  functions  of  his  office  pur- 
suant to  law.148 

§  329.  Sureties'  Liability  on  Bond  of  Clerks  of  Court. 
— Laws  have  been  enacted  compelling  clerks  of  court  to  give 
bond  for  the  faithful  performance  of  their  duties.  Such  bond 
covers  misappropriation  of  funds  given  into  the  clerk's  hands, 
and  all  ministerial  duties.  And  the  sureties  on  such  bonds  are 
liable  for  the  performance  of  duties  imposed  upon  him  which 
come  within  the  scope  of  his  office,  whether  required  by  law 
enacted  before  or  after  the  execution  of  the  bond.143  They  are 
liable  for  money  legally  paid  to  him;150  because  such  money  is 
received  by  virtue  of  his  office.151  They  are  also  liable  for 
omission,  neglect  or  misconduct  of  the  clerk.152 

When  a  new  bond  is  given  upon  demand  of  the  sureties,  the 
new  sureties  are  not  liable  for  money  received  and  misappropri- 

148Elkin  v.  People,  3  Scam.  (111.)  207;  State  v.  Roberts,  12  N.  J.  L.  114. 

"c  Clark  v.  Withers,  2  Ld.  Ray.  1074;  Campbell  v.  Cable,  2  Sneed,  18. 

14TKing  v.  Nichols,  16  Ohio  St.  80;  Peabody  v.  State,  4  Ohio  St.  387; 
Governor  v.  Mentfort,  1  Iredell  (N.  C),  155;  Freeholders  v.  Wilson,  16 
N.  J.  L.  110;  Brobst  v.  Killen,  16  Ohio  St.  382. 

"'People  v.  Foster,  133  111.  426. 

"'Weisenborn  v.  People,  53  111.  App.  32;  58  111.  App.  114,  116:  Governor 
v.  Ridgway,  12  111.  14. 

"•  Walters-Cates  v.  Wilkinson,  92  Iowa.  120:  Scott  v.  Hunt.  92  Tex.  389. 

"'Morgan  v.  Long,  29  Iowa,  434;  Swift  v.  Stiite.  03  Ind.  SI  :  Peebles  v, 
Boone,  116  N.  Car.  51;  Allen  v    Wood,  2  Baxt.  301. 

•"Governor  v.  Dodd,  81  111.  162;  Sullivan  v.  State,  121  Ind.  342;  State 
v.  Sloan,  20  Ohio,  327;  Swalling  v  King,  5  Lea,  585;  McDonald  v.  Atkins, 
13  Neb.  568. 


§  330-332)      bonds  of  public  officers,  etc.  235 

ated  before  they  executed  the  new  bond,  unless  they  so  stipulate; 
otherwise  the  old  sureties  only  aro  liable.153 

§  330.  C<  .:  nation  of  Clerk. — It  is  often  the  case  that 
a  clerk's  compensation  is  limited  by  statute,  and  he  is  required 
to  account  for  all  fees  received  by  him  in  excess  of  that  compen- 
sation. The  bond  in  such  case  is  so  conditioned,  and  he  and  his 
sureties  are  liable  for  the  excess  collected  by  him,154  and  he  and 
his  sureties  are  liable  for  such  excess  not  turned  over  to  the 
State.155 

§  331.  Failure  to  Pay  Over  to  Successor  in  Office  or 
to  Proper  Party. — When  the  law  requires  that  each  successive 
clerk  shall  receive  from  his  predecessor  all  the  records,  money 
and  property  of  the  office,  and  the  retiring  clerk  fails  so  to  do, 
some  decisions  hold  that  suit  may  be  instituted  against  him 
without  any  order  of  court  to  pay  the  money.156  But  the  weight 
of  authority  is  that  the  failure  of  the  retiring  clerk  to  pay  out 
moneys  to  the  parties  in  interest  constitutes  no  breach  of  the 
bond,  until  there  is  an  order  from  the  court  to  pay  it,  and  a 
demand  under  that  order  during  the  clerk's  term  of  office.157 

It  is  generally  held  that  it  is  a  condition  precedent  to  the 
institution  of  a  suit  on  the  bond  of  the  clerk  for  failure  to  pay 
over  to  the  proper  parties,  money  collected  by  him  during  his 
term  of  office,  that  there  must  be  an  order  from  the  court  to 
pay  over  such  moneys.158  But  such  order  is  not  necessary  bo- 
fore  suit  when  the  clerk  is  guilty  of  fraud  and  deceit  in  failing 
to  make  correct  statements  and  illegally  withholding  part  of  the 
money  received  by  him.159 

§  332.  Money  Paid  Into  Court  on  Judgment  or  by  Order 
of  Court. — Money  paid  into  court  on  a  judgment,  is  received 

"8CulIom  v.  Dolloff,  94  111.  330. 

164  Cullom  v.  Dolloff,  94  111.  330 ;  Hughes  v.  People,  82  111.  78. 

166  United  States  v.  Averill,   130  U.  S.  335. 
"*  Peebles  v.  Boone,  116  N.  Car.  57. 

167  State  v.  Lake,  30  S.  Car.  43. 

168  State  v.   Dent,   121   Mo.   1G2. 

"•State  v.  Henderson,  142  Mo.  598.  See,  also,  Stewart  v.  Sholl,  99 
Ga.  534. 


236  SURETYSHIP  AND  GUARANTY.  (Ch.  12 

"by  the  clerk  by  virtue  of  his  office,  and  upon  his  failure  to  pay 
over  the  money  to  the  proper  party,  his  sureties  become  liable 
for  this  default.160  Receipt  of  such  money,  whether  paid  volun- 
tarily to  him  or  by  the  sheriff  on  execution,  is  an  official  act, 
and  the  clerk's  failure  to  account  for  such  money  is  a  breach  of 
his  bond  for  which  his  sureties  are  liable.161  And  so  when  the 
money  is  ordered  paid  into  court  for  further  orders,  a  failure 
to  account  for  the  same  makes  the  clerk  and  his  sureties 
liable.162  Whether  such  money  is  legal  tender  cannot  be 
raised.163 

§  333.  Delinquincies  of  Clerks. — The  duty  of  approving 
bonds  on  appeal  and  his  other  official  duties,  are  given  to  the  clerk 
of  the  court  by  law.  So  if  the  clerk,  in  such  cases,  is  negligent, 
or  does  not  make  sufficient  inquiry  as  to  the  solvency  of  the 
sureties,  and  approves  the  bond,  he  and  his  sureties  are  liable 
for  any  damages  that  result  from  such  action  to  the  parties  in 
interest;164  and  an  unlawful  discrimination  between  judgment 
creditors  makes  his  sureties  liable  for  any  damages  resulting;163 
or  for  failure  to  issue  execution;166  or  a  failure  to  enroll 
a  judgment  so  as  to  become  a  lien;167  or  to  make  a 
proper  entry  of  a  judgment;168  or  to  make  an  erroneous 
satisfaction  of  judgment;169  or  failure  to  enter  case  on  the 
docket;170  or  a  refusal  to  issue  citation;171  or  a  failure  to  trans- 

380  Morgan  v.  Long,  29  Iowa,  434. 

'"McDonald  v.  Atkins,  13  Neb.  568. 

1  .Valters-Cates  v.  Wilkinson,  92  Iowa,  129;  Craig  v.  Governor,  3  Cold. 
(Tenn.)  244;  State  v.  Watson,  38  Ark.  96.  Compare  Waters  v.  Carroll, 
9  Yerg.  102;  Hardin  v.  Carrico,  3  Met.   (Ky.)   261. 

m  Billings  v.  Teeling,  40  Iowa,  607. 

""Billings  v.  Lafferty,  31  111.  318;  Hubbard  v.  Switzer,  47  Iowa,  681 ; 
Brock  v.  Hopkins,  5  Neb.  231 ;  Field  v.  Wallace,  89  Iowa,  597. 

'"Newbern  Bank  v.  Jones,  2  Dev.  Eq.   (N.  Car.)   284. 

1M  Badham  v.  Jones,  64  N.  Car.  655. 

"'Strain  v.   Babb,   30  S.   Car.  342. 

"•State  v.  Dodd,  81  111.  162. 

"•Van  Etten  v.  Commonwealth,  102  Pa.  St.  596. 

"•Brown  v.  Lester,  13  Bm.  &  M.   (Miss.)  392. 

in  Anderson  v.  Johett,  14  La.  Ann.  624. 


§    334)  BONDS    OF    PUBLIC    OFFICERS,    ETC.  237 

mit  transcript;172  or  to  make  a  false  certificate  of  record  of 
judgment;173  or  for  making  a  false  certificate  of  acknowledg- 
ment.174 

But  his  sureties  are  not  liable  for  withholding  of  moneys 
which  he  had  no  right  to  receive  in  his  legal  capacity.175  And 
if  it  is  not  his  duty  to  approve  a  bond,  his  sureties  are  not  liable 
for  his  approval  of  a  defective  bond.176  But  his  sureties  are 
liable  upon  a  bond  executed  after  the  receipt  of  money,  but  while 
unaccounted  for,  for  non-payment  of  such  money  to  the  proper 
parties.177 

The  clerk  is  a  ministerial  officer,  and  is  liable  for  damages 
occasioned  by  his  neglect  in  taking  insufficient  security  on  appeal 
bonds;  if  he  exercises  a  reasonable  degree  of  care  in  the  per- 
formance of  his  official  duty,  he  is  not  liable,  nor  his  sureties, 
even  if  the  security  proves  insufficient.178  What  is  due  care 
and  diligence  in  the  approval  of  an  appeal  bond,  is  a  question 
of  fact.179 

§  334.  Sureties  of  Justices  of  the  Peace. — Sureties  on 
the  bond  of  a  justice  of  the  peace  are  not  liable  for  his  judicial 
acts,  but  they  are  liable  for  his  neglect  or  misconduct  of  his  acts 
in  his  mnisterial  capacity.  His  sureties  undertake  to  pay  on 
demand  to  every  person  who  may  be  entitled  thereto,  all 
moneys  which  the  justice  may  receive  in  his  official  capacity, 
and  which  he  withholds.  But  the  sureties  do  not  undertake  to 
pay  money  which  the  justice  may  obtain  in  some  unlawful  man- 
ner as  by  a  mere  trespass,  unless  the  bond  so  provides.180     The 

in  Collin3  v.  McDaniel,  66  Ga.  203. 

mZiegler  v.   Commonwealth,   12   Pa.  St.   227. 

lwBartels  v.  People,  152  111.  557. 

171  Jenkins  v.  Lemonds,  29  Ind.  294 :  Bowers  v.  Fleming,  67  Ind.  541 ; 
State  v.  Enslow,  41  W.  Va.  744. 

,T*  Dewey  v.  Kavanangh,  45  Neb.  233. 

m  State  v.  Moses,  18  S.  Car.  366. 

"•Brock  v.  Hopkins,  5  Neb.  231;  Field  v.  Wallace,  89  Iowa,  597.  Com- 
pare McNutt  v.  Livingston,  7  Sm.  &  M.    (Miss.)   641. 

m  Field  v.  Wallace,  89  Iowa.  507;  Brock  v.  Hopkins,  5  Neb.  231. 

im  Barnes  v.  Whitaker,  45  Wis.  204. 


238  SUKETYSHIP  AND  GUARANTY.  (Ch.  12 

bond  may  provide  that  he  and  Ms  sureties  shall  be  liable  for  acts 
committed  through  favor,  fraud  or  partiality.181 

When  he  receives  money  not  in  his  official  capacity  and  mis- 
appropriates it,  his  sureties  are  not  liable. 1S2  But  he  and  his 
sureties  are  liable  for  notes  left  in  his  hands  for  collection  or 
for  money  received  as  a  justice  and  not  as  a  mere  agent.183 

And  if  the  justice  does  not  perform  his  ministerial  acts  ac- 
cording to  law,  his  sureties  are  liable  for  damages  that  may 
accrue.184  So  where  he  makes  a  false  acknowledgment,  and  is 
guilty  of  fraud,  his  sureties  are  liable  for  any  injury  arising.185 
He  and  his  sureties  are  liable  if  he  issues  an  attachment  without 
the  required  bond,  though  the  injury  is  nominal  ;1S6  or  if  he 
neglects  to  enter  judgment  according  to  law,  and  injury  results 
to  the  successful  party;187  and  so  if  judgment  is  paid  in  with- 
out the  costs  of  suit,  and  he  takes  out  the  costs  contrary  to  the 
orders  of  the  judgment  creditor,  he  and  his  sureties  are  liable 
for  this  breach  of  the  bond.lss 

§  335.  Police  Offices. — Police  officers  are  not  strictly  pub- 
lic officers  whose  sureties  are  liable  for  their  faithful  perform- 
ance of  their  duties  as  pertain  to  the  public  at  large.  So  upon 
general  principles,  a  party  upon  whom  a  policeman  commits  a 
tort  has  no  right  for  damages  against  his  sureties,  for  the  reason 
that  there  is  no  privity  of  contract  between  him  and  the  officer 
or  his  sureties.     Being  an  entire  stranger  to  the  contract,  it 

,n  State  v.  Flinn,  3  Blackf.   (Ind.)   72;  Gowing  v.  Gowgill,  12  Iowa,  495. 

18S  Cressey  v.  Gierman,  7  Minn.  398 ;  Commonwealth  v.  Kendig,  2  Pa. 
St.  448. 

mBessinger  v.  Dickerson,  20  Iowa,  260;  State  v.  Bliss,  19  Ind.  App.  662; 
Ditmars  v.  Commonwealth,  7  Pa.  St.  335;  Brockett  v.  Martin,  11  Kan. 
378;  Peabody  v.  State,  4  Ohio  St.  387;  Widener  v.  State,  45  Ind.  244; 
MeCormick  v.  Thompson,  10  Neb.  484;  Commonwealth  v.  Kendig,  2  Pa. 
St.   448. 

m  Place  v.  Taylor,  22  Ohio  St.  317. 

'•McLondon  v.  Mortg.  Co.,  119  Ala.  518. 

™  Head  v.  Levy,  52  Neb.  456. 

,,T  Larson  v.  Kelly,  64  Minn.  51. 

'"Hodge  v.  People,  78  111.  App.  378. 


§    336)  BONDS    OF    PUBLIC    OFFICERS,    ETC.  -Id 

would  require  express  legislative  authority  to  give  him  a  right 
of  action  thereon.189 

3  336.  Sureties  of  Notary  Public. — The  object  of  a 
notary's  bond  is  to  obtain  indemnity  against  the  use  of  official 
position  for  a  wrong  purpose,  which  is  done  under  color  of 
office,  and  which  would  obtain  no  credit  except  from  its  appear- 
ing a  regular  official  act,  and  within  the  protection  of  the  bond ; 
if  injury  occurs  it  must  be  made  good  by  all  those  who  sign  the 
bond.190  Therefore,  his  sureties  are  liable  for  his  misfeasance 
in  knowingly  certifying  the  acknowledgment  of  a  grantor,  who 
is  absent  and  did  not  appear  before  him,  and  also  for  certifying 
an  acknowledgment  without  reading  it;191  and  fr>r  a  false  cer- 
tificate knowingly  issued.192 

The  holder  of  a  bill  is  authorized  to  give  full  credence  to  a 
notary's  certificate  of  demand  and  notice,  and  may  look  to  the 
notary  for  damages  resulting  from  its  falsity,  when  within  the 
scope  of  his  official  duties.193  But  the  damages  arising  from 
the  notary's  failure  to  perform  his  official  duties  must  proxi- 
mately and  directly  be  the  result  of  such  neglect.194 

The  weight  of  authority  is  that  when  a  bank  receives  nego- 
tiable paper  for  collection,  and  upon  non-payment  by  debtor, 
the  bank  gives  it  to  a  notary  for  protest,  the  bank's  responsibil- 
ity ceases  provided  it  exercises  reasonable  care  in  the  selection 
of  the  notary.195  But  there  are  cases  which  hold  that  the  bank 
is  liable  for  the  negligence  of  the  notary  employed  by  it,196  but 
the  great  weight  of  authority  is  the  other  way. 

MS  Alexander  v.  Ison,  107  Ga.  745. 

""People  v.  Pierce,  74  Mich.  643. 

181  People  v.  Colby,  39  Mich.  456. 

JM  Scotten  v.  Fegan,  62  Iowa,  236 ;  Rochereau  v.  Jones,  29  La.  Ann.  82. 

393Fogarty  v.  Finlay,  10  Cal.  239;  State  v.  Meyer,  2  Mo.  App.  413;  Tevis 
T.  Pandill,  6  Call.  632. 

1M  Oakland  Sav.  Bank  v.  Murfey,  68  Cal.  455. 

"*  Baldwin  v.  Bank,  1  La.  Ann.  560;  Britton  v.  Nicolls.  104  U.  S.  766  j 
Warren  Bank  v.  Bank,  10  Cush.  582;  Baker  v.  Butler,  41  Ohio  St.  519; 
First  Nat.  Bank  v.  Bank,  107  Iowa,  543. 

"•  Montgomery  Co.  Bank  v.  Bank,  7  N.  Y.  459;  Ayrault  v.  Bank,  47 
N.  Y.  570. 


240  SURETYSHIP  AND  GUARANTY.  X^ll.  ^ 

§  337.  Tax  Collector. — Where  the  law  requires  absolutely 
a  ministerial  act  to  be  done  by  a  public  officer,  a  neglect  or 
refusal  to  do  such  act  makes  him  liable  to  respond  in  dam- 
ages to  the  extent  of  the  injury  arising  from  his  conduct.197 
Hence,  the  neglect  of  a  collector  of  his  official  duty  in  collecting 
taxes  makes  his  sureties  liable  upon  his  bond.198  If  the  statute 
authorizing  the  levying  and  collection  of  taxes  is  unconstitu- 
tional or  otherwise  invalid,  the  collector  cannot  be  permitted  to 
retain  the  money  illegally  collected  under  color  of  his  office.199 
And  the  failure  to  pay  over  such  money  constitutes  a  breach  of 
the  condition  of  the  bond  and  the  principal  and  sureties  are>< 
liable.200  The  sureties  are  liable  for  funds  misappropriated 
by  their  principal.201  Thus,  where  a  collector  is  continued  for 
a  second  term,  gives  a  new  bond,  and  pays  arrearage  of  the  first 
term  with  money  collected  in  his  second  term,  this  is  a  misappro- 
priation of  funds,  and  the  sureties  are  liable,  the  obligee  not 
knowing  when  receiving  the  money  of  its  misappropriation.202 

The  liabilities  of  the  sureties  are  limited  by  the  terms  of  the 
bond,  and  cannot  be  extended  beyond  the  reasonably  necessary 
import  of  the  same.208     And  the  collector  and  his  sureties  are 

187  Amy  v.  Supervisors,   11  Wall.  136. 

188 People  v.  Smith,  123  Cal.  70;  Falmer  v.  Pettingil  (Idaho),  55  Pac. 
Rep.  653. 

""McGuire  v.  Williams,  123  N.  Car.  349;  Moore  v.  Allegheny  City,  18 
Pa.  St.  55;  Connell  v.  Crawford  Co.,  59  Pa.  St.  196;  Mayor  v.  Merritt,  27 
La.  Ann.  568 ;  Pawlet  v.  Kelley,  69  Vt.  398 ;  McLean  v.  State,  8  Heisk.  22 ; 
Clifton  v.  Wynne,  80  N.  Car.  145. 

^Boothby  v.  Giles,  68  Me.  160;  Brunswick  v.  Snow,  73  Me.  179;  Sand- 
wich v.  Fish,  2  Gray,  298;  Tunbridge  v.  Smith,  48  Vt.  648;  Montpelier  v. 
Clarke,  67  Vt.  479. 

201  King  v.  United  States,  99  U.  S.  229;  Soule  v.  United  States,  100  U.  S. 
8;  United  States  v.  Stone,  106  U.  S.  525. 

■"  Commonwealth  v.  Knettle,  182  Pa.  St.  176;  Colrain  v.  Bell,  9  Met. 
499;  Carpenter  v.  Corwith,  62  Vt.  Ill;  Frownfelter  v.  State,  66  Md.  80; 
Lyndon  v.  Miller,  36  Vt.  329;  Gwynne  v.  Burnell,  7  CI.  &  Fin.  572.  See, 
also,  State  v.  Sooy,  39  N.  J.  L.  539;  Stone  v.  Seymour,  15  Wend.  20;  State 
T.  Smith,  26  Mo.  226. 
I  ■•  State  v.  Montague,  34  Fla.  32 ;  United  State*  v.  Cheesman,  3  Saw.  424% 


§  338)        BONDS  OF  PUBLIC  OFFICERS,  ETC.  241 

liable  for  the  uncollected  taxes,   unless  some  valid  excuse  is 
shown  for  their  non-collection.204 

Where  the  bond  provides  that  the  taxes  shall  be  settled  by  a 
certain  day,  but  such  settlement  is  not  made  by  the  collector,  a 
demand  on  him  for  settlement  is  not  necessary  before  action  is 
brought.205  It  would  be  otherwise  if  the  bond  contained  no 
such  provision,  and  demand  should  be  made  before  bringing 
action.206 

§  338.  Subrogation  of  Surety  on  Official  Bond. — Sure- 
ties on  the  bond  of  public  officers  being  compelled  to  make  good 
the  defaults  of  their  principal  will,  by  the  fact  of  payment,  be- 
come equitable  assignees  and  be  subrogated  to  the  position  of 
the  State  in  respect  to  all  its  securities,  liens  and  priorities  for 
the  purpose  of  enforcing  reimbursement  from  their  principal.207 
And  it  is  immaterial  how  the  State's  right  of  priority  origin- 
ated, whether  by  the  common  law,  positive  statute  or  contract; 
once  established  that  it  is  entitled  to  rank  as  a  preferred  creditor, 
and  the  same  preference  will  be  upheld  by  way  of  subrogation 
for  the  benefit  of  the  surety.208  But  subrogating  a  surety  on  a 
recognizance  to  the  peculiar  remedies  which  the  government  en- 
joys is  against  public  policy,  and  tends  to  subvert  the  object  and 
purpose  of  the  recognizance,  and  cannot  therefore  be  allowed.209 
And  so  the  surety  may  lose  his  right  of  subrogation  by  laches. 
Thus,  where  a  surety  has  a  secret  lien  which  is  held  unasserted 
until  holders  of  legal  rights  have  been  thrown  off  their  guard 
and  lose  their  opportunity  to  protect  themselves,  he  cannot  then 
bring  it  forward  to  the  injury  of  those  who  had  no  notice.210 

JM  Montpelier  v.  Clarke,  67  Vt.  479. 

**McGuire  v.  Williams,  123  N.  Car.  349. 

"•Commonwealth  v.  MeClure   (Ky.),  49  S.  W.  Rep.  789. 

107  Myers  v.  Miller,  45  W.  Va.  595. 

">°  Hawker  v.  Moore.  40  W.  Va.  49;  Hook  v.  Rieheson,  115  111.  431; 
Crawford  v.  Rieheson,  101  111.  351;  Boltz's  Estate,  133  Pa.  St.  77;  Turner 
V.  Teague,  73  Ala.  554;  Irby  v.  Livingston,  81  Ga.  281;  Robertson  v. 
Trigg,  32  Gratt.  76;  Hunter  v.  United  States,  5  Pet.  173;  Orem  v. 
Wrightson,  51  Md.  34. 

""United  States  v.  Ryder,   110  U.  S.  730. 

""Gring's   Appeal,   89   Pa.   St.    336. 

16 


2±2  SUBEXYSHIP  AND  GUAEANTY.  l^CL  IS 

CHAPTER  XIII. 

GUARANTY. 

§  339.  Definition. — A  guaranty  is  an  undertaking  by  one 
person  that  another  shall  perform  his  contract  or  fulfill  his  obli- 
gation, and  if  he  does  not  the  guarantor  will  do  it  himself.1 
In  a  legal  and  commercial  sense  it  is  an  undertaking  to  be 
answerable  for  the  payment  of  some  debt  or  the  due  perform- 
ance of  some  contract  or  duty  by  some  person  who  himself  re- 
mains liable  for  his  own  default.2  A  guaranty  is  an  under- 
taking as  in  case  of  suretyship,  but  a  conditional  one,  to  answer 
for  the  debt  or  default  or  miscarriage  of  another.  Accordingly 
in  a  conditional  guaranty  the  guarantor  contracts  to  pay  if,  by 
the  reasonable  exercise  of  due  diligence,  the  debt  cannot  be  made 
out  of  the  principal.3  The  liability  of  a  guarantor  is  co-exten- 
sive with  that  of  his  principal,  unless  it  is  expressly  limited.4 

While  the  undertaking  of  a  guarantor  is  technically  different 
from  that  of  a  surety,5  yet  the  contract  of  guaranty  is  the  obli- 
gation of  surety.6  Both  are  accessory ;  a  guaranty  is  a  second- 
ary, and  suretyship  a  primary,  obligation."  The  undertaking 
of  a  guarantor  is  his  own  separate,  independent  contract,  dis- 
tinct from  that  of  the  principal  debtor.8 

The  contract  of  an  indorser  is  primary,  and  that  of  transfer ; 
a  guaranty  is  that  of  a  security  ;9  a  guarantor  is  held  to  a  stricter 
measure  of  responsibility.10 

1  Atwood  v.  Lester,  20  R.  I.  660;  Gridley  v.  Capen,  72  111.  13. 
1  MoLaren    v.    Watson,    26    Wend.    425,    435;    Andrews    v.    Tedford,    37 
Iowa,  315. 

1  Welsh  v.  EbeTsole,  75  Va.  651,  656. 

'Hooper  v.  Hooper,  81  Md.  155;   Richardson  v.  Allen,  74  Ga.  719. 

■  Kramp  v.  Hatz,  52  Pa.  St.  525. 

•Davis  v.  Wells,  104  U.  S.  159. 

'  Hooper  v.  Hooper,  81   Md.  155. 

'Abbrett   v.   Brown.   131   111.  108. 

•San  Diepo  First  Nat.   Bank  v.   Babcock.  94  Cal.   102. 

*  Arents  v.  Commonwealth,  18  Gratt.  750. 


§    340)  GUARANTY.  243' 

A  guaranty  may  be  retrospective  in  its  operation  so  as  to 
embrace  debts  or  contracts  where  it  appears  that  such  was  the 
intention  of  the  parties;11  but  such  construction  can  only  be 
given  to  a  guaranty,  where  by  express  words,  or  by  necessary 
implication,  it  clearly  appears  to  be  the  intent  of  the  parties 
to  embrace  past  contracts.12 

§  340.  Classification  of  Guaranties  as  to  Their 
Nature. — Guaranties  are  classified  into  general  or  special, 
limited  or  continuing,  absolute  or  conditional.  Upon  the  terms 
of  a  general  contract  any  person  is  entitled  to  advance  money  or 
incur  liability  upon  complying  with  the  provisions,  and  may 
then  enforce  the  same  as  though  he  was  specially  named  there- 
in.13 A  special  guaranty  is  addressed  to  a  particular  indi- 
vidual or  firm,  and  such  individual  or  firm  alone  has  the  right 
to  act  upon  it.14  A  limited  or  continuing  guaranty  may  be  for 
a  single  act  or  continuing.15  Where  the  guaranty  looks  to  a 
future  course  of  dealing  for  an  indefinite  time,  or  a  succession 
of  credits  to  be  given,  it  is  to  be  deemed  a  continuing  guar- 
anty.16 Guaranties  without  limitation  as  to  time  or  amount 
will  be  considered  to  refer  to  a  single  transaction.17  An  abso- 
lute guaranty  is  an  unconditional  promise  of  payment  or  per- 
formance on  default  of  the  principal ;  and  the  guarantee  may 
proceed  at  once  against  the  guarantor  on  default  of  the  princi- 
pal without  prior  notice  to  the  guarantor.  A  guaranty  is  con- 
ditional where  there  is  some  extraneous  event  beyond  the  mere 
default  of  the  principal  by  which  the  guaranty  becomes  binding, 
and  the  liability  does  not  attach  immediately  upon  non-payment 

"Hammond  v.  Johnson,  20  111.  3(17:   Poodle  v.  Lee.  104  N.  Y.  441. 

"People  v.  Lee,  104  N.  Y.  441;  Pritchett  v.  Wilson,  39  Pa.  St.  421. 
See  see.  4. 

"Evansville  Nat.  Bank  v.  Kaufman,  93  N.  Y.  27;  Wheeler  v.  Mayfield, 
31  Tex.  395. 

14  Peoria  Second  Nat.  Bank  v.  Diefendorf,  90  111.  396 ;  Mitchell  v.  Railton, 
45  Mo.  App.  27. 

15Birdsall  v.  Heacock,  32  Ohio  St.  184. 

ieTwoby  v.  McMurran,  57  Minn.  242. 

17  Knowlton  v.  Hersev,  *6  Me.  Si.";. 


244  SURETYSHIP    AND    GUARANTY.  (Ch.  13 

or  non-performance  of  the  principal.  It  is  necessary  to  fix  the 
liability  on  the  guarantor  that  there  should  be  notice  or  accept- 
ance of  the  guarantee,  and  notice  of  the  principal's  default  and 
reasonable  diligence  in  exhausting  reasonable  remedies  against 
the  principal.18 

§  341.  Consideration. — The  contract  of  guaranty  not  under 
seal  requires  a  consideration  to  support  it,  though  the  considera- 
tion need  not  be  in  money;  so  a  consideration  may  arise  from 
some  injury  or  inconvenience  to  one  party,  or  from  some  benefit 
to  the  other.19  If  the  debt  of  the  principal  debtor  be  pre-exist- 
ing, then  there  must  be  a  new  and  distinct  consideration  to  sus- 
tain the  promise  of  the  guarantor.  But  if  the  obligation  of 
the  principal  debtor  be  founded  upon  a  valuable  consideration, 
and  after  it  was  incurred,  or  before  that  time,  the  promise  of 
the  guarantor  is  made  and  entered  into  as  the  inducement  for 
giving  the  guaranty,  then  the  consideration  for  the  principal 
debt  is  considered  as  a  valuable  consideration  also  for  the  under- 
taking of  the  guarantor.20  If  the  promise  is  in  the  nature  of 
an  original  undertaking  to  pay  a  debt  to  a  third  party  and  is 
founded  upon  a  valuable  consideration  received  by  the  promisor 
himself,  it  is  sufficient.21 

Extension  of  time  to  pay  the  debt  is  a  sufficient  consideration 
to  support  the  guaranty  of  a  stranger  of  the  payment  of  the  new 
obligation.22  So  a  forbearance  by  the  creditor  to  sue  the  prin- 
cipal debtor  for  a  debt  due  is  a  sufficient  consideration  to  support 
the  guaranty.23  And  the  extension  of  time  for  the  performance 
of  an  agreement  or  for  the  payment  of  a  debt  forms  a  sufficient 

"City  Bank  v.  Hopson,  53  Conn.  455;  Bearasley  v.  Hawes,  71  Conn.  39. 

"Robinson  v.  Hyer,  35  Fla.  544;  Adams  v.  Huggins,  78  Mo.  App.  219; 
Conover  v.  Stillwell,  34  N.  J.  L.  54;  Hirsch  v.  Carpet  Co.,  82  111.  App.  234; 
Bickford  v.  Gibbs,  8  Cusb.  156. 

30  Bassheans  v.  Rowe,  4(3  Mo.  54. 

21  Wilson  v.  Bevans,  58  111.  232;  Brown  v.  Brown,  47  Mo.  130;  Baker  v. 
Bradley,  42  \.  V.  :5i6;  Uhler  v.  Bank,  04  Pa.  St.  406. 

"  Faulkner  v.  Gilbert  (Nob.),  77  N.  W.  Rep.  1072. 

"Aldershaw  v.  King,  2  Hurl.  &  N.  517. 


§    341)  GUARANTY.  245 

consideration  to  support  the  contract.24  But  a  promise  to  for- 
bear to  prosecute  a  claim  which  has  no  foundation  forms  no  con- 
sideration.25 An  agreement  to  withdraw  a  suit  against  the 
principal  is  a  sufficient  consideration.26  The  promise  to  pay 
the  debt  of  another  in  consideration  of  forbearance  is  not  bind- 
ing unless  accepted  by  the  other  party.  There  must  be  a  mutual 
agreement,  the  consideration  being  a  promise  for  a  promise; 
both  parties  must  be  bound.27 

The  promise  to  forbear  will  be  void  unless  it  provides  for  some 
actual  delay  and  affords  a  means  of  determination  of  how  long 
that  delay  is  to  continue,28  because  a  promise  to  forbear  in 
general,  without  adding  any  particular  time,  is  to  be  understood 
a  total  forbearance.29  While  the  promise  to  pay  the  debt  of 
another  must  be  accepted  by  the  other  party  to  make  it  binding, 
yet  acts  of  the  creditor  may  show  that  he  has  relied  upon  the 
promise,  though  he  made  no  declaration  to  that  effect,  and  hence, 
the  promise  is  binding.30 

A  consideration  arising  from  some  injury  or  inconvenience  to 
one  party  or  from  some  benefit  to  the  other  is  recognized  a  legal 
consideration.  Thus,  if  A,  for  the  purpose  of  strengthening 
the  credit  of  B,  agrees  with  C  to  become  responsible  for  goods 
to  be  sold  in  the  future  by  C  to  B,  and  C  accepts  the  agreement 
and  acts  upon  it  by  selling  goods  to  B,  there  is  every  element  of 
a  valid  consideration,  because  C  has  parted  with  his  property 
upon  the  faith  of  A's  promise,  and  B,  at  A's  express  or  implied 

"Underwood  v.  Hossack,  38  111.  209;  Fuller  v.  Scott,  8  Kan.  25. 

"Cabot  v.  Haskins,  3  Pick.  83.  Compare  Hamaker  v.  Eberly,  2  3inn. 
<Pa.)   506. 

26  Worcester  Sav.  Bank  v.  Hill,  113  Mass.  25-  Harris  v.  Vendbly,  L.  R. 
7  Exch.  235. 

37Shupe  v.  Galbreathe,  32  Pa.  St.  19;  Clark  v.  Russel,  3  Watts.  213; 
Snyder  v.  Leibengood,  4  Pa.  St.  305 ;  Semple  v.  Pink,  1  Exch.  74. 

"  Shupe  v.  Galbreathe,  32  Pa.  St.  19;  Elling  v.  Vanderlyn,  4  Johns.  Ch. 
237, 

"Hamaker  v.  Eberly,  2  Binn.  (Pa.)  510;  Clark  v.  Russel,  3  Watts.  213* 

80  Downing  v.  Funk,  5  Rawle,  69 ;  Weaver  v.  Wood,  9  Pa.  St.  220. 


246  SURETYSHIP  AND  GUARANTY.  (Cll.  13 

request,  has  obtained  a  benefit  by  means  of  such  promise.31 
There  must  be  a  consideration;32  a  seal  imports  a  considera- 
tion.33 Although  it  is  a  general  rule  at  common  law,  a  seal 
imports  a  consideration,  yet  equity  disregards  such  form  and 
looks  to  the  reality,  and  requires  an  actual  consideration,  and 
permits  the  want  of  it  to  be  shown,  notwithstanding  the  seal. 
If  at  common  law  the  seal  imports  unimpeachable  consideration, 
it  is  in  cases  where  the  seal  is  itself  legally  affixed  in  the  first 
instance,  and  not  in  cases  of  forgery  or  without  any  lawful 
authority.34 

§  342.  Executory  Consideration. — As  a  general  rule  the 
guaranty  -of  a  pre-existing  debt  of  another  is  not  binding  on 
the  guarantor  without  a  new  and  independent  consideration  to 
support  it;  but  when  the  guaranty,  though  executed  after  the 
debt  was  created,  is  connected  with,  and  the  inducement  of,  the 
original  credit  or  the  result  of  a  previous  promise  by  the  guaran- 
tor, upon  the  faith  of  which  the  credit  was  obtained  by  the  orig- 
inal debtor,  it  requires  no  new  or  independent  consideration  to 
render  it  valid,  but  it  is  a  part  of  the  original  transaction  and 
the  consideration  upon  which  it  was  given.35 

Where  the  guaranty  is  made  at  the  same  time  with  the  prin- 
cipal contract,  and  becomes  an  essential  ground  of  the  credit 
given  to  the  principal,  there  need  not  be  any  other  consideration 
than  that  moving  between  the  creditor  and  the  original  debtor 

°Ferst  v.  Blackwell.  39  Fla.  621;  Wellington  v.  Apthorp,  145  Mass.  69; 
Beakes  v.  Da  Cunha,  126  N.  Y.  293;  Train  v.  Gold,  5  Pick.  380;  Williams 
V.  Perkins,  21  Ark.  18;  McDougald  v.  Development  Co,.  117  Cal.  87; 
Armstrong  v.  Canal  Co.,  14  Utah,  450;  Lennox  v.  Murphy,  171  Mass.  370. 

"Klein  v.  Currier,  14  111.  237;  Tenney  v.  Prince,  4  Pick.  385;  Mac- 
farland  v.  Heim,  127  Mo.  327. 

"Snyder'  Estate,  7  Kulp  (Pa.),  409;  Antisdel  v.  Williamson,  37  App. 
Div.  167. 

M  Hale  v.  Dresser,  73  Minn.  277.     See  sec.   344,  et  seq. 

■  Standley  v.  Adames,  36  Miss.  434;  Gillingham  v.  Boardman,  29  Me. 
79;  Pam  v.  Stackhouse,  38  Pa.  St.  302;  McNaught  v.  McClaughry,  42 
N.  Y.  22. 


I  343, 344)  guaranty.  247 

under  the  principal  contract.36  But  where  the  guaranty  is  made 
subsequent  to  the  creation  of  the  debt  and  was  not  an  induce- 
ment to  it,  the  consideration  of  the  original  debt  will  not  support 
it,  so  there  must  be  some  further  consideration  having  an  imme- 
diate respect  to  such  liability  fJ~  and  it  is  sufficient  that  there  be 
something  moving  toward  the  principal  debtor.38 

§  343.  Moral  Obligation. — The  promise  to  pay  the  debt 
of  another,  based  upon  a  moral  obligation,  is  invalid.  Thus, 
the  fact  that  goods  were  bought  for  the  use  of  a  certain  person, 
does  not  afford  a  moral  obligation  as  will  support  his  parol 
promise  to  pay  for  them,  where  he  is  under  no  legal  obligation  to 
pay  for  the  same,  and  no  arrangement  is  made  for  discharging 
the  primary  debtor,39  because  an  express  promise  can  only  revive 
a  precedent  valid  consideration  which  might  have  been  enforced 
at.  law,  through  the  medium  of  an  implied  promise,  had  it  not 
been  suspended  by  some  positive  rule  of  law,  but  it  can  give  no 
original  right  of  action  if  the  obligation  on  which  it  was  founded 
never  could  have  been  enforced  at  law,  though  not  barred  by  legal 
maxim  or  statute  provision.40 

A  moral  obligation  will  not  support  a  voluntary  written  guar- 
anty, unless  there  was  once  a  legal  consideration.41 

§  344.  As  to  Consideration,  Guaranties  are  of  Two 
Kinds. — Guaranties  may  be  classified  as  follows :  ( 1 )  Where 
the  consideration  passes  wholly  at  one  time ;  such  are  not  termi- 
nated by  death.  (2)  Where  the  consideration  passes  at  different 
times  and  is  separable ;  such  are  revocable,  and  are  terminated 
by  death  and  notice  of  death.42 

*6Dillman  v.  NadelhofTer,  160  111.  121  j  Winans  v.  Cable,  etc.,  Co.,  48 
Kan.  777;  Lennox  v.  Murphy,  171  Mass.  370;  Osborne  v.  Gullikson,  64 
Minn.  218;  Glenn  v.  Lehnen,  54  Mo.  45;   Wood  v.  Tunnicliff,  74  N.  Y.  38. 

^Parkhurst  v.  Vail,  73  111.  343:  Briggs  v.  Latham,  36  Kan.  209;  Peck 
t.  Harris,  57  Mo.  App.  467;   Draper  v.  Snow,  20  N.  Y.  331. 

58  Dahlman  v.  Hammel.  45  Wis.  466 ;  Bickford  v.  Gibbs,  8  Cush.  156. 

"Hendricks  v.  Robinson,  56  Miss.  695. 

*°Wennall  v.  Adney,  3  Bos.  &  P.  247.  253  note. 

**  Martin's  Estate,  131  Pa.  St.  638;  Pam  v.  Stackhouse,  38  Pa,  St.  302. 

"National  Eagle  Bank  v    Hunt,   16  It.  I.  148.     See  sec.  346. 


248  suretyship  and  guaranty.  (ch.  13 

§  345.  Guaranties  Where  the  Consideration  is  Entire. 
— In  this  class  of  guaranties  the  consideration  is  entire,  and 
passes  wholly  at  one  time:  Thus,  where  a  person  enters  into  a 
guaranty  that,  in  consideration  of  the  lessor  granting  a  lease  to  a 
third  person,  he  will  be  answerable  for  the  performance  of  the 
covenants.  The  moment  the  lease  is  granted,  there  is  nothing 
more  for  the  lessor  to  do;  and  such  guaranty  as  that  of  neces- 
sity runs  throughout  the  duration  of  the  lease.  The  lease  is 
intended  to  be  a  guarantied  lease  and  it  is  impossible  to  say 
that  the  guarantor  could  put  an  end  to  the  grant  at  his  pleasure, 
or  that  it  could  be  put  an  end  to  by  his  death  contrary  to  the 
intention  of  the  parties.43  And  of  course  if  the  guarantor  dies 
his  estate  is  responsible  for  the  defaults  of  his  principal.  So 
where  a  party,  in  consideration  that  an  employer  would  take  into 
his  service  a  certain  individual  as  collector  and  clerk  in  a  respon- 
sible position,  would  be  answerable  for  the  fidelity  of  the  em- 
ployee so  long  as  he  continued  in  that  service,  such  guaranty  can- 
not be  put  an  end  to  so  long  as  the  sen7 ice  continues.  The  consid- 
eration is  admitting  the  employee  into  the  service  of  the  employer 
in  that  capacity,  and  that  being  done,  it  becomes  a  guarantied 
service  so  long  as  the  clerk,  or  employee,  remains  in  that  posi- 
tion. The  guaranty,  therefore,  necessarily  continues  until  the 
service  is  ended.44  In  this  class  of  cases,  the  consideration 
passes  entire  at  the  time,  and  is  not  therefore  severable.45 

§  346.  Guaranty  Where  the  Consideration  Passes  at 
Different  Times  and  is  Separable. — In  this  class  of  cases 
the  consideration  passes  at  different  times,  and  is  therefore  sep- 
arable or  divisible.  Such  guaranty  may  be  revoked  as  to  sub- 
sequent transactions  by  the  guarantor  upon  notice  to  that  effect, 

"Lloyds  v.  Harper.  16  Ch.  D.  200. 

"Calvert  v.  Gordon,  3  Man.  &  Ry.  124. 

^fireen  v.  Youncr.  8  Me.  14;  Royal  Ins.  Co.  v.  Davies,  40  Iowa.  469; 
Rapp  v.  Ins.  Co.,  113  111.  300:  Monro  v.  Wallis,  18  Ala.  458;  Hall  v.  Och.9, 
34  App.  Div.  103;  Kernachan  v.  Murray,  111  N.  Y.  306. 


§    347)  GUARANTY.  249 

and  it  determines  by  his  death  and  notice  of  that  event.46  These 
cases  are  generally  where  a  guaranty  is  given  to  secure  the  bal- 
ance of  a  running  account  at  a  bank,  or  the  balance  of  a  money 
account  for  goods  supplied.  In  these  cases  the  consideration  is 
supplied  from  time  to  time,  and  it  is  reasonable  to  hold,  unless 
the  guaranty  stipulates  to  the  contrary,  that  the  guarantor  may 
at  any  time  terminate  the  guaranty.  He  remains  answerable 
for  all  the  advances  made  or  of  goods  supplied  upon  his  guar- 
anty before  notice  to  terminate  it  is  given.  A  notice  of  the 
death  of  the  guarantor  is  notice  to  terminate  the  guaranty,  and 
has  the  same  effect  as  a  notice  given  in  the  lifetime  of  the  guar- 
antor that  he  would  put  an  end  to  it.47  In  England  such 
guaranty  is  terminated,  not  by  the  death  of  the  guarantor,  but 
by  notice  of  his  death.48  But  in  the  United  States  the  death  of 
the  guarantor  operates  as  a  revocation  of  it,  and  the  person 
holding  it  cannot  recover  against  his  executor  or  administrator 
for  goods  sold  after  his  death.49 

§  347.  Indorsement  Before  and  After  Delivery  op 
Note. — The  statute  often  gives  the  status  of  a  party  signing  a 
note  before  and  after  delivery.  In  Missouri  a  third  party  who 
indorses  a  note  after  delivery  to  the  payee  becomes  a  guarantor.50 
But  a  party  contracting  to  assume  the  liability  of  an  indorser, 
cannot  be  held  as  a  guarantor.51     If  he  indorses  before  delivery 

"Hyland  v.  Habich,  150  Mass.  112;  Jordan  v.  Dobbins,  122  Mass.  168; 
Offord  v.  Davies,  12  C.  B.,  N.  S.  748;  Coulthart  v.  Clementson,  5  Q.  B. 
Div.  42 ;  Menard  v.  Scudder,  7  La.  Ann.  385 ;  National  Eagle  Bank  v.  Hunt, 
16  R.  I.  148. 

47  Coulthart  v.  Clementson,  5  Q.  B.  D.  42 ;  Harris  v.  Fawcett,  L.  R.  15 
Eq.  311.  Compare  Bradbury  v.  Morgan,  1  H.  &  C.  249,  decision  ques- 
tioned in  Harris  v.  Fawcett,  L.  R.  15  Eq.  311,  313,  8  Ch.  App.  §66,  and 
was  not  regarded  in  Coulthart  v.  Clementson,  5  Q.  B.  D.42. 

"Coulthart  v.  Clementson,  5  Q.  B.  D.  42,  47;  Lloyd  v.  Harper,  16  Ch. 
D.  290,  314. 

"Jordan  v.  Dobbins,  122  Mass.  168;  Hyland  v.  Habich,  150  Mass.  112; 
Aitken  v.  Lang  (Ky.),  51  S.  W.  Rep.  154;  National  Eagle  Bank  v.  Hunt, 
16  R.  L  148. 

50  Adams  v.  Huggins,  73  Mo.  App.  140. 

61  Tatum  v.  Brown,  23  Miss.  760;  Russell  v.  Clarke,  7  Cranch,  69. 


250  SURETYSHIP    AND    GUARANTY.  L(Ch.  13 

to  the  payee,  the  presumption  is  that  he  assumed  the  liability  of 
a  guarantor,  which  may  be  rebutted  by  proof  that  the  agreement 
between  the  parties  was  different,52  as  between  the  original  par- 
ties, the  payee  still  holding  the  note.53 

But  the  decisions  upon  this  subject  are  unreconcilable.  The 
United  States  Supreme  Court  holds  that  when  a  promissory  note 
made  payable  to  a  particular  party  or  order,  is  first  indorsed 
by  a  third  person,  that  is,  before  indorsed  by  the  payee,  such  an 
indorser  is  an  original  promisor,  guarantor,  or  indorser,  accord- 
ing to  the  nature  of  the  transaction  and  the  understanding  of 
the  parties.54 

In  many  of  the  States  such  indorser  is  held  prima  facie  liable 
as  a  guarantor.55  Other  courts  hold  that  such  indorser  is  pre- 
sumably a  second  indorser,  because  in  the  absence  of  evidence 
to  the  contrary  the  indorsement  is  for  the  accommodation  of  the 
payee,  and  is  a  second  indorsement  requiring  the  indorsement 
of  the  payee  to  make  it  operative.56  Still  other  courts  hold  that 
such  indorser  is  prima  facie  liable  as  joint  maker  or  surety.57 

Many  cases  affirm  the  rule  that  if  one  not  the  payee  indorses 
his  name  in  blank  on  a  negotiable  note  before  it  is  indorsed  by 

"Eberhart  v.  Page,  89  111.  550. 

,3Milligan  v.  Holbrook,  168  111.  343;  De  Witt  Co.  Bank  v.  Nixon,  125 
111    615. 

c*Rey    v.    Simpson,    22    How.    341;     Good    v.    Martin,    95    U.    S.    90. 

"Lincoln  v.  Hinsey,  51  111.  437;  Stowall  v.  Raymond,  83  111.  120; 
Clark  v.  Merriam,  25  Conn.  576;  Osborne  v.  Gullikson,  64  Minn.  218; 
Fuller  v  Scott,  8  Kan.  32;  Seymour  v.  Mickey,  15  Ohio  St.  515;  Crooks 
y.  Tully,  50  Cal.  673;  Knight  v.  Dunsmore,  12  Iowa,  35;  Milligan  v. 
Holbrook,  168  111.  343;  Peterson  v.  Russell,  62  Minn.  220;  Orrick  v. 
Colston,  7  Gratt.  (Va.)  189;  Arnold  v.  Bryant,  8  Bush,  668;  ChajBihaLJ. 
Westfall,  3  Tex.  477. 

"Coulter  v.  Richmond,  59  N.  Y.  478;  Moore  v.  Cross,  19  N".  Y.  27; 
Arnott  v.  Symonds,  85  Pa.  St.  99;  Cady  v.  Shepard,  12  Wis.  639;  Phelps 
v.  Vischer,  50  N.  Y.  74;  Browning  v.  Merritt,  61  Ind.  425. 

41  Spaulding  v.  Putnam,  128  Mass.  363;  Sylvester  v.  Downer,  20  Vt.  355; 
Perkins  v.  Barstow,  9  R.  I.  907;  Atwood  v.  Lester,  20  R.  I.  660;  Baker 
v.  Robinson,  63  N.  Car.  191;  Leonard  v.  Wilder,  36  Me.  265;  Schley  v. 
Merritt,  37  Md.  352;  Logan  v.  Ogden,  101  Tenn.  392;  Good  v.  Martin,  2 
Colo.  218;  95  U.  S.  90;  Nathan  v.  Sloan,  34  Ark.  524;  Ban  v.  Mitchell, 
7  Oreg.  346. 


§    347)  GUARANTY.  251 

the  payee,  and  before  it  is  delivered  to  take  effect  as  a  promis- 
sory none,  it  might  be  presumed  that  he  intended  to  give  it  credit 
by  becoming  liable  to  pay  it,  cither  as  a  guarantor  or  as  an 
original  promisor.58  If  the  contract  of  indorsement  was  made 
at  the  inception  of  the  note,  it  is  presumed  to  have  been  made 
for  the  same  consideration  and  a  part  of  the  original  contract 
expressed  by  the  note.  If  made  subsequently  to  the  date  of  the 
note  and  without  the  prior  indorsement  by  the  payee,  it  will  be 
presumed  that  it  was  not  made  for  the  same  consideration,  and 
the  party,  if  liable  at  all,  will  be  regarded  as  a  guarantor,  and 
such  contract  of  guaranty  of  a  debt  of  a  third  person  must  be 
in  writing,  and  there  must  be  a  sufficient  proof  of  the  considera- 
tion.59 This  is  the  rule  where  the  third  party  indorses  the  note 
before  the  payee.  But  where  a  third  person  indorses  the  note 
after  a  prior  indorsement  by  the  payee,  the  law  presumes  it  to 
have  been  done  in  aid  of  the  negotiation  of  the  note,  and  the 
party  may  be  regarded  as  a  subsequent  indorser,  the  rule  being 
that  if  the  indorsement  is  without  date  it  will  be  presumed  to 
have  been  made  at  the  inception  of  the  note.60 

And  it  is  further  held  that  in  the  irregularities  in  the  execu- 
tion of  a  promissory  note  the  maker  and  such  indorser  are  both 
to  be  deemed  original  promisors,  and  the  note  a  joint  and  several 
promissory  note  to  the  payee,  although  as  between  the  maker 
and  the  third  party,  they  stand  in  the  relation  of  principal  and 
surety.61  This  rule  should  be  applied  where  the  third  party 
indorses  his  name  in  blank  on  the  note  at  the  time  when  it  was 
made  and  before  it  was  indorsed  by  the  payee.  But  the  rule 
may  be  otherwise  if  the  party  actually 'wrote  his  name  at  a  sub- 

68  Bryant  v.  Eastman,  7  Cush.  Ill;  Benthal  v.  Judkins,  13  Met.  265; 
Colbun  v.  Averill.  30  Me.  310. 

BB  Brewster  v.  Silence,  8  N.  V.  207;  Leonard  v.  Vredenburg,  8  Johns.  29; 
Hall  v.  Farmer,  5  Denio,  484. 

80  Ranger  v.  Carey,  1  Met.  309:  Noxon  v.  De  Wolf,  10  Gray,  43;  Collins 
V  Gilbert,  94  U.  S.  753. 

61  Sylvester  v.  Downer,  20  Vt.  355;  Lewis  v.  Harvey,  18  Mo.  746. 


252  SURETYSHIP  AND  GUARANTY.  (Ch.  13 

sequent  period,  unless  it  was  done  in  compliance  with  an  agree- 
ment made  before  the  note  was  executed.62 

The  rule  undoubtedly  should  be,  that  where  a  promissory  note 
is  made  payable  to  a  particular  person  or  order,  and  is  first 
indorsed  by  a  third  person,  such  third  person  should  be  regarded 
as  an  original  promisor,  guarantor,  or  indorser,  according  to  the 
nature  of  the  transaction  and  the  understanding  of  the  parties 
at  the  time  the  transaction  took  place,  when  the  statute  does  not 
give  the  status  of  the  third  party. 

If  a  person  puts  his  name  in  blank  on  the  back  ot  a  note  at  the 
time  it  was  made,  and  before  it  was  indorsed  by  the  payee,  to 
give  the  maker  credit  with  the  payee,  or  if  he  participated  in 
the  consideration  of  the  note,  he  must  be  considered  as  a  joint 
maker  of  the  note,63  when  not  controlled  by  statute.  But  if  the 
indorsement  was  subsequent  to  the  making  of  the  note  and  to 
the  delivery  of  the  same  to  take  effect,  and  a  third  person  puts  his 
name  on  the  back  of  the  note  at  the  request  of  the  maker,  pur- 
suant to  a  contract  of  the  maker  with  the  payee  for  further 
indulgence  or  forbearance,  he  can  only  be  held  as  a  guarantor 
where  there  is  legal  proof  of  consideration  for  the  promise,  unless 
it  is  shown  that  he  was  connected  with  the  inception  of  the  note. 
But  if  the  note  was  intended  for  discount,  and  he  indorses  it  with 
the  understanding  of  all  the  parties  that  his  indorsement  should 
be  inoperative  until  the  instrument  was  indorsed  by  the  payee, 
he  would  then  be  liable  only  as  a  second  indorser,  in  the  com- 
mercial sense,  and  as  such  would  clearly  be  entitled  to  the  privi- 
leges which  belong  to  such  an  indorser. 

In  the  interpretation  of  the  contract,  whether  the  party  so  in- 
dorsing is  an  original  promisor,  guarantor,  or  indorser,  the  inter- 
pretation ought  to  be  such  as  will  carry  into  effect  the  intention 
of  the  parties,  and  proof  of  facts  and  circumstances  which  took 

"Hawkea  v.  Phillips,  7  Gray,  284;  Leonard  v.  Wilder.  36  Me.  265; 
Champion  v.  Griffith,  L3  Ohio,  228. 

"Schneider  v.  Schiffman,  20  Mo.  571;  Logan  v.  Ogden,  101  Tenn.  392; 
Irish  v.  Cutter,  31  Me.  536. 


§    348)  GUARANTY.  253 

place  at  the  time  of  the  transaction  should  be  admissible  to  aid 
in  the  interpretation  of  the  language  employed.64 

§  348.  Offer  and  Acceptance. — "When  notice  should  be 
given  as  to  acceptance  of  an  offer  of  guaranty,  it  is  of  import- 
ance in  reference  to  the  liability  of  the  guarantor.  When  an 
instrument  in  writing  resolves  itself  into  a  promise  or  under- 
taking on  the  part  of  the  person  executing,  to  do  a  particular 
thing  which  another  is  bound  to  do,  in  the  event  such  other 
person  does  not  perform  the  act  himself,  it  is  an  original  under- 
taking, and  not  a  collateral  guaranty;  it  is  in  the  nature  of 
suretyship,  and  the  person  bound  by  it  must  take  notice  of  the 
default  of  the  principal.65  In  a  strict  guaranty,  the  guarantor 
does  not  undertake  to  do  what  the  principal  is  bound  to  do,  but 
he  undertakes,  in  the  event  of  the  principal's  failure,  to  do  what 
he  has  promised,  to  pay  damages  for  such  failure.  The  guar- 
antor promises  to  pay  such  damages  as  result  from  the  principal's 
default.  A  surety  undertakes  to  do  a  particular  thing  if  the 
principal  does  fail.66 

The  contract  of  guaranty  is  his  own  separate  undertaking,  in 
which  the  principal  does  not  join,  and  is  not  a  joint  engagement 
with  his  principal.67  Where  the  guaranty  is  for  the  fulfillment 
of  a  contract  already  made,  or  for  one  executed  contemporane- 
ously with  the  contract  of  guaranty,  or  for  the  payment  of  an 
existing  debt,  or  where  the  contract  of  guaranty  is  upon  a  con- 
sideration distinct  from  the  credit  extended  to  the  principal 
debtor,  and  which  moves  directly  between  guarantor  and  guaran- 
tee, notice  of  acceptance  is  not  necessary.  In  such  cases  the 
acceptance  of  the  guaranty  and  the  performance  of  the  con- 

84  Denton  v.  Peters,  L.  R.  5  Q.  B.  475 ;  Cavazos  v.  Trevine,  6  Wall.  773 ; 
Shore  v.  Wilson,  9  CI.  &  F.  352;  Clayton  v.  Grayson,  4  Nev.  &  M.  602; 
Hopkins  v.  Leek,  12  Wend.  105.     See  sec.  36. 

"Furst  v.  Black,  111  Ind.  308;  Reigart  v.  White,  52  Pa.  St.  438;  Woods 
v.  Sherman,  71  Pa.  St.  100;  Riddle  v.  Thompson,  104  Pa.  St.  330. 

MNading  v.  McGregor,  121  Ind.  465. 

"Davis  Sewing  Mach.  Co.  v.  Richards,  115  U.  S.  524. 


254  SURETYSHIP  AND  GUARANTY.  (Oh.  13 

sideration  upon  which  it  rests  make  the  contract  complete  and 
enforceable.68 

The  rule  requiring  notice  by  the  guarantee  of  his  acceptance 
of  a  guaranty  and  his  intention  to  act  under  it,  applies  only 
where  the  instrument  in  legal  effect  is  merely  an  offer  or  pro- 
posal; then  notice  of  such  acceptance  is  necessary.69  But  in 
the  case  of  an  absolute  guaranty,  and  not  a  mere  offer  of  guar- 
anty, notice  of  acceptance  by  the  guarantee  is  not  necessary.70 
Ordinarily  there  is  no  occasion  to  notify  the  guarantor  of  the 
acceptance  of  an  offer  of  guaranty,  for  doing  of  the  act  specified 
in  the  offer  is  a  sufficient  acceptance.  But  when  the  guarantor 
would  not  know  of  himself  from  the  nature  of  the  transaction 
whether  the  offer  had  been  accepted  or  not,  he  is  not  bound  with- 
out reasonable  notice  of  the  acceptance  seasonably  given  after 
the  performance  which  constitutes  the  consideration.71  And  it 
is  held  that  notice  is  not  necessary,  even  if  the  guaranty  is  made 
at  the  request  of  the  guarantee,72  though  other  courts  hold  that 
notice  of  acceptance  is  necessary  in  such  cases.73 

Guaranties  of  performance  and  payment  are  absolute  and  not 

"Davis  v.  Wells,  104  U.  S.  159;  Cooke  v.  Orne,  37  111.  186. 

68  Davis  v.  Wells,  104  U.  S.  159;  Field  v.  Maish,  85  111.  App.  164;  Lamb 
v.  CarJey,  35  App.  Div.  503;  Sears  v.  Swift,  66  ill.  App.  496. 

"Platter  v.  Green,  26  Kan.  252;  Jackson  v.  Yandes,  7  Blaekf.  (Ind.) 
536;  Case  v.  Howard,  41  Iowa,  479;  Crittenden  v.  Fiske,  46  Mich.  70; 
Maynard  v.  Morse,  36  Vt.  617;  Powers  v.  Bumcratz,  12  Ohio,  St.  293; 
Evans  v.  McCormick,  167  Pa.  St.  247;  Bryant  v.  Stout,  16  Ind.  App.  380; 
1  ige  v.  Parker,  8  Gray,  211;  Bank  v.  Sinclair,  60  N.  H.  100;  Howe  v. 
Ni<  -les,  22  Me.  175;  Globe  Printing  Co',  v.  Bickle,  73  Mo.  App.  499;  New 
Haven  Co.  Bank  v.  Mitchell,  15  Conn.  206;  Douglass  v.  Howland,  24 
JVend.  35;  Standard  Oil  Co.  v.  Hoese  (Neb.),  78  N.  W.  Rep.  292;  Feist 
v.  Blackwell,  39  Fla.  621:  Bishop  v.  Eaton,  161  Mass.  496;  Lemp_v._ 
Armongol,  86  Tex.  690j  Smith  v.  Dann,  6  Hill  (N.  Y.),  543;  Wright  vT 
Griffith,  121  ind.  478;  Neagle  v.  Sprague,  63  111.  App.  25;  Sears  v.  Swift, 
66   Hi.  App.  496. 

"  Bishop  v.  Eaton,  161  Mass.  496;  Babcock  v.  Bryant,  12  Pick.  133; 
gears  v.  Swift,  66   111.  App.  496. 

"Davis  v.  Wells,  104  U.  S.  159;  Davis  Sewing  Mach.  Co.  v.  Richards, 
J 15    U.    S.   524. 

"Evans  v.  McCormick,  167  Pa.  St.  247;  Gardner  v.  Lloyd,  110  Pa.  St. 
278;  Kay  v.  Allen,  g  Pa.  St.  320;  German  Bav.  hank  v.  Roofing  Co.  (Iowa), 
61  Cent.  Li  .Journal,  428,  and  note. 


§    348)  GUARANTY.  ■<!.'> o 

collateral.  Unlike  the  contract  of  an  indorser,  there  is  no  con- 
dition as  to  demand  and  notice  of  default  annexed  to  a  contract 
of  guaranty  of  payment  or  of  performance.  Such  a  guaranty 
is  an  absolute  promise  that  the  principal  will  perform  in  accord- 
ance with  the  provisions  of  his  contract.  It  is  the  business  of 
the  guarantor  to  inform  himself  as  to  the  conduct  of  the  prin- 
cipal. There  is  some  conflict  to  this  doctrine,  but  it  is  the  true 
rule,  because  the  guarantor  makes  an  absolute  promise  that  a 
particular  thing  shall  be  done,  and  thereby  assumes  an  active, 
absolute  duty  to  see  that  it  is  done  and  must,  at  his  peril,  per- 
form the  promise.  And  while  the  gaurantee,  from  his  situation, 
possesses  better  means  of  knowing  of  the  default  of  the  princi- 
pal than  the  guarantor,  yet  the  latter  has  ample  means  of  know- 
ing the  facts,  and  must  inform  himself  and  not  rely  upon  the 
guarantee,  who  owes  no  duty  to  the  guarantor  except  to  act  in 
the  utmost  good  faith,  and  not  be  guilty  of  laches  to  the  guaran- 
tor's injury.74 

In  an  absolute  guaranty,  notice  of  default  is  not  necessary  to 
be  given  to  the  guarantor  to  hold  him  liable.75  But  when  the 
instrument  is  merely  an  offer  or  a  proposition,  then  notice  of  the 
acceptance  of  the  guaranty  is  necessary.76  Suit  is  not  necessary 
in  any  jurisdiction  against  the  principal  debtor,  when  the  guar- 
anty is  absolute,  in  order  to  fix  the  liability  of  the  guarantor,77 

"Hubbard  v.  Haley,  96  Wis.  578;  Mallory  v.  Lyman,  3  Pin.  (Wis.) 
443;  Hyman  v.  Dooley,  77  Md.  162;  Wise  v.  Miller,  45  Ohio  St.  388. 

"Taylor  v.  Tolman  Co.,  47  111.  App.  264;  Valtz  v.  Harris,  40  111.  155; 
Nading  v.  McGregor,  121  Ind.  465;  Carmen  v.  Elledge,  40  Iowa,  40't; 
Crittenden  v.  Fiske,  46  Mich.  70;  Globe  Printing  Co.  v.  Bickle,  73  Mo. 
App.  499;  Lininger,  etc.,  Co.  v.  Wheat,  49  Neb.  567;  City  Nat.  Bank  v. 
Phelps,  86  N.  Y.  484.     Compare  Evans  v.  McCormick,  167  Pa.  St.  247. 

"•Davis  v.  Wells,  104  U.  S.  159;  Cooke  v.  Orne,  37  111.  186;  Scribner  v. 
Rutherford,  65  Iowa,  551;  De  Cramer  v.  Anderson,  113  Mich.  578;  Field  v. 
Maish,  85  111.  App.  164. 

"Benny  v.  Crane,  80  111.  244;  Roberts  v.  Riddle,  79  Pa.  St.  468;  Cule 
v.  Bank,  60  Ind.  350;  Flentham  v.  Steward,  45  Neb.  640;  Peterson  v. 
Russell,  62  Minn.  220;  German  Sav.  Bank  v,  Drake  (Iowa),  79  N.  W.  Rap. 
121,  Louisiana,  etc.,  R.  R.  Co.  v.  Dillard,  51  La.  Ann.  1484;  Maury  V 
Waxelbaum   (Ga.),  33  S.  E.  Rep.  701. 


256  SURETYSHIP  AND  GUARANTY.  (Ch.  13 

§  349.  Guaranty  of  Payment. — Guaranty  of  payment 
may  be  made  on  the  back  of  the  instrument  or  by  a  separate  writ- 
ing, and  whether  it  be  an  absolute  or  conditional  contract  is  not 
settled.  One  line  of  cases  hold  that  it  is  an  absolute  contract, 
and  on  default  the  guarantor  need  not  be  notified  in  order  to 
hold  him.78 

In  other  jurisdictions  a  guaranty  is  considered  as  condi- 
tional, and  the  guarantor  must  be  given  notice  at  once  of  the 
non-payment,  in  order  to  hold  him.79  The  cases  cannot  be  recon- 
ciled. 

§  350.  Conditional  Guaranty. — The  guarantor  may  sign 
the  contract  with  a  condition  annexed.  Thus,  where  the  guaran- 
tor becomes  such  after,  the  delivery  of  a  note  upon  a  condition, 
and  the  condition  is  not  complied  with,  the  contract  is  invalid.80 
So  a  party  guaranteeing  a  note  upon  condition  that  other  persons 
shall  also  become  guarantors,  the  payee  agreeing  to  such  condi- 
tion, is  released  if  the  other  parties  do  not  sign.81  If  the  condi- 
tion is  complied  with  the  contract  is  valid.  And  if  one  signs 
upon  a  condition  that  a  counter  agreement  will  be  executed,  he  is 
not  entitled  to  notice  of  such  execution,  which  makes  it  abso- 
lute.82 An  absolute  guaranty  is  an  unconditional  undertak- 
ing on  the  part  of  the  guarantor  that  the  maker  will  pay  the  note 

73  Donley  v.  Camp,  22  Ala.  659;  City  Sav.  Bank  v.  Hopson,  53  Conn. 
453;  Hance  v.  Miller,  21  111.  636;  Studebaker  v.  Cody,  54  Ind.  586;  Levi  v. 
Mendell,  1  Duv.  (Ky.)  78;  Roberts  v.  Hawkins,  70  Mich.  566;  Hungerford 
v.  O'Brien,  37  Minn.  306:  Baker  v.  Kelly,  41  Miss.  696;  Beardsley  v. 
Hawes,  71  Conn.  39:  Wright  v.  Dyer,  48  Md.  525;  Allen  v.  Rightmere,  20 
Johns.  365;  Clay  v.  Edgerton,  19  Ohio  St.  549;  Taylor  v.  Ross,  3  Yerg. 
330;  Smith  v.  Me,  3  Vt.  290. 

T»Foote  v.  Brown,  2  McLean,  369;  Barrett  v.  May,  2  Bailey  (S.  Car.) 
L.  1;  Crooks  v.  Tully,  50  Cal.  254;  Erwin  v.  Lambon,  1  Harr.  (Del.)  125; 
Newton  Wagon  Co.  v.  Diers,  10  Neb.  284;  Rockford  Sendon  Nat.  Bank  v. 
Gaylord,  34  Iowa,  246;  Tolbot  v.  Gay,  18  Pick.  563;  Globe  Bank  v.  Small, 
25  Me.  366. 

"Eaton  v.  Foster,  66   111.  App.  486. 

"Belleville  Sav.  Bank  v.  Bornman,  124  111.  200;  State  Bank  v.  Burton- 
Gardner  Co.,   14  Utah,  420. 

"Lennox  v.  Murphy,  171  Mass.  370. 


I    351,  352)  GUARANTY.  257. 

or  other  debt.  A  conditional  guaranty  is  an  undertaking  to  pay 
if  payment  cannot,  by  reasonable  diligence,  bo  obtained  from 
the  principal.83 

§  351.  Guaranty  of  Illegal  Contracts. — A  guaranty  of 
an  illegal  contract  is  void.  If  the  guaranty  is  to  secure  the  per- 
formance of  an  unlawful  act  it  is  invalid.84 

A  guaranty  may  be  limited.  So  the  fact  that  a  note  provides 
for  a  certain  rate  of  interest,  does  not  make  the  contract  of 
guaranty  illegal,  because  it  provides  for  a  less  rate  of  interest; 
such  difference  in  the  rate  of  interest  does  not  create  a  repug- 
nancy between  the  note  and  the  guaranty.85 

An  absolute  guarantor  is  liable  for  a  note  which  is  purchased 
by  an  innocent  party  on  the  strength  of  the  guaranty,  though  the 
note  is  invalid.86  And  the  same  rule  applies  to  a  certificate  of 
deposit,  if  it  is  valid  upon  its  face,  and  its  invalidity  is  for 
matters  dehors  its  face.S7  And  the  guarantor  will  be  bound 
although  some  of  the  prior  parties'  names  to  the  note  are 
forged.88 

In  some  States  a  guaranty  made  on  Sunday  is  void;89  but 
in  others  a  contract  made  on  Sunday  is  valid  ;90  and  such  is  the 
common  law  rule.91  So  if  a  contract  of  guaranty  or  any  other 
is  void  if  made  on  Sunday,  it  is  so  by  statutory  provision. 

§  352.  Default  of  Payment — Notice  to  Guarantor. — 
In  the  case  of  collateral  continuing  guaranty  for  the  payment 
of  goods  to  be  thereafter  sold,  a  guarantee  who,  from  time  to 
time,  sells  goods  on  the  faith  of  the  guaranty,  must  give  the 
guarantor  reasonable  notice  of  defaults  of  payment  on  the  part 

^Beartfsley  v.  Hawes,  71  Conn.  39;  Cowles  v.  Peck,  55  Conn.  251. 

"  Howard  v.  Smith.  9J,Xe£r  8^  Jack  v.  Sinsheimer,  125  Cal.  563. 

"  Cozzens  v.  Brick  CoT  166  111.  213. 

"Holm  v.  Jamieson,  173  111.  295. 

"Purdy  v.  Peters,  35  Barb.  239. 

"  Veazie  v.  Willis,  6  Gray,  90. 

•Carrick  v.  Morrison   (Del.),  42  At.  Rep.  447. 

••Richmond  v.  Moore,  107  111.  429. 

"Drnry  v.  Defontaine,  1  Taut.  136. 

17 


258  SURETYSHIP  AND  GUARANTY.  (Ch.  13 

ef  the  principal  debtor;  and  the  guarantor  will  be  discharged 
from  liability  so  far  as  he  may  sustain-  loss  and  damages  result- 
ing from  a  failure  of  the  guarantee  to  give  such  notice.  But  if 
such  notice  can  result  in  no  benefit  to  the  guarantor,  and  no 
injury  results  to  him  from  failure'  to  give  such  notice,  such 
omission  on  the  part  of  the  guarantee  will  not  bar  recovery  for 
such  defaults,  from  the  guarantor.92  Thus,  where  A  made  and 
delivered  to  B  a  writing  guaranteeing  the  prompt  payment  of  all 
debts  which  C  might  make  by  the  purchase  of  goods  from  B 
in  the  future,  with  interest'  thereof,  B  not  being  obliged  to  sell 
or  C  to  purchase  any  goods,  the  undertaking  of  A  will  not  be 
an  absolute  guaranty,  but  a  collateral  or  conditional  one,  and 
reasonable  notice  must  be  given  to  A  of  the  failure  of  G  to  pay 
for  goods  bought  by  him,  unless  such  notice  would  be  of  no 
benefit  to  A.93 

§  353.  Notice  of  Default. — Notice  of  default  when  neces- 
sary must  be  given  within  a  reasonable  time.94  What  is  a  rea- 
sonable time  for  such  notice  depends  upon  circumstances.  If  it 
be  given  before  loss  can  occur,  or  the  situation  of  the  parties 
becomes  changed  so  as  to  endanger  loss,  it  is  sufficient ;  if  delayed 
so  long  as  to  deprive  the  guarantor  of  the  means  of  securing  him- 
self, it  will  not  be  in  time,  and  the  guarantor  will  be  released.95 

But  if  the  principal  is  insolvent  when  the  debt  becomes  due 
or  default  is  made,  no  notice  is  required,  because  the  guarantor 
could  derive  no  benefit  from  the  receipt  of  notice.96 

Of  course,  where  the  contract  is  an  absolute  guaranty,  and 

"Taussig  v.  Reid.  145  111.  488:  Montgomery  v.  Kellog,  43  Miss.  48G; 
Howe  v.  Nickels,  22  Me.  175;  Clark  v.  Remington,  11  Met.  361;  Davis  v. 
Wells,  104  U.  S.  159;  Ferst  v.  Blaekwell,  39  Fla.  621;  Crittenden  v.  Fiske, 
46  Mich.  70;  Martin  v.  Wright,  6  Adol.  4,  E.  917. 

"Taussig  v.  Reid.   145  111.  488. 

••Oxford  Bank  v.  Haynes,  8  Pick.  423;  Sylvester  v.  Downing.  IS  Vt.  31; 
Purst  v.  Black,  111  Tnd.  308;  Bracketl  v.  Rich.  23  Minn.  485;  Patterson  v. 
Reed.  7  Watts  &  S.  144;  Greene  v.  Dodge,  2  Ohio,  231. 

•»  DickerBOTJ  v.  Derrickson,  39  111.  574;  Taussig  v.  Reid.  145  111.  488. 

"Bracket*  V.  Rich.  23  Minn.  485:  Dearborn  v.  Sawyer,  59  N.  H.  95; 
.Walker  v.  Forbes,  25  Ala.  139;  Taussig  v.  Reid,  145  111.  488. 


§  354, 355)  guaranty.  259 

provides  that  a  definite  sum  shall  be  paid  at  a  stated  time,  no 
notice  of  default  is  necessary  before  suit  is  brought  against  the 
guarantor.97  Unlike  a  contract  of  an  indorser,  there  is  no  con- 
dition as  to  demand  and  notice  of  default  annexed  to  a  contract 
of  guaranty  of  payment  or  of  performance.98 

§  354.  Continuing  Guaranty. — When  the  parties  to  a  guar- 
anty look  to  a  future  course  of  dealing  for  an  indefinite  time,  or 
a  succession  of  credits  to  be  given,  it  is  to  be  deemed  a  continu- 
ing guaranty;  but  when  no  time  is  fixed  upon  and  nothing  in 
the  agreement  indicates  a  continuance  of  the  undertaking,  the 
presumption  is  in  favor  of  a  limited  liability  as  to  time.  Thus, 
a  guaranty  of  payment  for  goods  to  be  sold  "from  time  to  time" 
to  an  amount  not  exceeding  a  specified  sum,  is  continuous  imtil 
the  sums  remaining  unpaid  reach  the  designated  limit,  although 
the  aggregate  of  purchases  have  exceeded  it.99  The  rule  is  this : 
When  by  the  terms  of  the  undertaking,  by  the  recitals  in  the  in- 
struments, or  by  a  reference  to  a  custom  and  course  of  dealing 
between  the  parties,  it  appears  that  the  guaranty  looks  to  future 
course  of  dealing  for  an  indefinite  time,  or  a  succession  of  credits 
to  be  given,  it  is  to  be  deemed  a  continuing  guaranty,  and  the 
amount  expressed  is  to  limit  the  amount  for  which  the  guarantor 
is  to  be  responsible.100 

§  355.  Letters  of  Credit  May  Be  a  Continuing  Guar- 
anty.— Letters  of  credit  may  be  so  expressed  as  to  be  a  continu- 

"Gage  v.  Bank,  79  III.  62;  Peck  v.  Frink,  10  Iowa.  19.'?;  Hubbard  v. 
Haley,  96  Wis.  578;  Barker  v.  Scudder.  56  Mo.  272;  Powers  v.  Bunicratz, 
12  Ohio  St.  273;  Lent  v.  Padelford,  10  Mass.  230;  Gammell  v.  Panamore, 
58  Ga.  54. 

"Hubbard  v.  Haley,  96  Wis.  578. 

*•  Crittenden  v.  Fiske,  46  Mich.  70;  Sherman  v.  Mulloy  (Mass.),  54  N.  E. 
Rep.  345;  Mason  v.  Pritchard,  12  East.  227;  Douglass  v.  Reynolds,  7  Pet. 
113;  Hatch  v.  Hobbs.  12  Gray,  447;  Gates  v.  McKee.  13  N.  Y.  232; 
Melendy  v.  Capen,  120  Mass.  222;   Taussig  v.  Reid,  145  111.  488. 

100  Anderson  v.  Blakeley,  2  Watts  &  S.  237;  Hotchkiss  v.  Barnes,  34 
Conn.  27;  Congdon  v.  Read.  7  R.  I.  576;  Strong  v.  Lyon,  63  N.  Y.  172; 
Boston,  etc.,  Co.  v.  Moore.  119  Mass.  435;  Reed  v.  Fish,  59  Me.  358;  Boyce 
v.  Ewart,  1   Rice    (S.  Car.),   126. 


260  SURETYSHIP  AND  GUARANTY.  (Ch.  13 

ing  guaranty.  If  the  parties  appear,  by  the  letter  of  credit,  to 
contemplate  a  course  of  future  dealing  between  the  parties,  it  is 
not  exhausted  by  giving  credit  even  to  the  amount  limited  by 
the  letter  which  is  subsequently  reduced  or  satisfied  by  payment 
made  by  the  debtor,  but  is  to  be  deemed  a  continuing  guar- 
anty,101 and  the  writer  of  the  letter  of  credit  is  liable  for  the 
credit  given  upon  it  without  notice  to  him  unless  its  terms  ex- 
press or  imply  the  necessity  of  giving  notice.  Where  there  is  a 
guaranty  for  future  operations,  and  one  of  uncertain  amount, 
there  should  be  a  distinct  notice  of  acceptance.  But  where  the 
guaranty  is  absolute  in  its  terms,  no  notice  is  necessary.102 

Where  a  proposition  is  made  by  one  party  to  guarantee  pay- 
ment to  another,  if  he  will  sell  goods  to  a  third  party,  notice  of 
acceptance  of  the  proposition  is  necessary  to  create  the  contract 
of  guaranty.103 

But  another  line  of  cases  holds  that  notice  must  be  given  of 
acceptance  of  an  absolute  guaranty  within  a  reasonable  time  to 
the  guarantor.104  But  this  doctrine  is  opposed  to  the  weight 
of  English  and  American  authority.105 

§  356.  Construction  of  Contract. — The  weight  of  author- 
ity is  in  favor  of  construing  a  contract  of  guaranty  by  rules 
which  apply  as  favorably  to  the  guarantor  as  those  which  apply 

101  Gates  v.  McKee,   13  N.  Y.  232. 

102  Union  Bank  v.  Coster,  3  N.  Y.  204;  Yancey  v.  Brown,  3  Sneed,  89; 
Cormon  v.  Elledge,  40  Iowa,  400;  Powers  v.  Bremcratz,  12  Ohio  St.  273, 
where  the  cases  are  reviewed;  Paige  v.  Parker,  8  Gray,  211;  Maynard  v. 
Morse,  36  Vt.  617;  Douglass  v.  Howland.  24  Wend.  35. 

"'Neagle  v.  Sprague,  63  111.  App.  25;  Cooke  v.  Orne,  37  111.  186;  Bishop 
v.  Eaton,  161  Mass.  496;  Wright  v.  Griffith,  121  Ind.  478;  Lemp  v.  Arnuj- 
^gol,  86  Tex.  690;  Smith  v.  Dann,  6  Hill  (N.  Y.),  543;  Whitney  v.  Groat, 
24    Wend.   HI. 

104 Douglass  v.  Reynolds,  7  Pet.  113;  Adams  v.  Jones,  12  Pet.  207;  Lee  v. 
Dick.  10  Pot.  495;  Lawson  v.  Townes.  2  Ala.  375;  Walker  v.  Forbes,  25 
Al;i.  1  17:  McCollum  v.  dishing,  22  Ark.  542;  Croft  v.  Isham,  13  Conn.  36; 
Taylor  v.  McCluney,  2  Houst.  (Del.)  38;  Kinchelor  v.  Holmes,  7  B.  Mon.  9; 
Bank   v.  Sloo,  10  La.  Ann.  543. 

"*  Powers  v.  Bumcratz,  12  Ohio  Stat.  273,  where  the  English  and  Ameri- 
can authorities  are  reviewed;  German  Sav.  Bank  v.  Roofing  Co.  (Iowa),  51 
Cent.  L.  Journal,  428,  and  note. 


§    356)  GUARANTY.  261 

to  other  contracts,  notwithstanding  the  guarantor  is,  in  a  sense, 
to  be  regarded  as  a  surety.106 

Commercial  guaranties  are  in  extensive  use,  and  should  re- 
ceive the  liberal  construction  that  is  given  to  other  contracts.107 
In  such  construction,  technicalities  should  be  excluded  and  the 
reasonable  intention  of  the  parties,  as  it  may  be  gathered  from 
all  parts  of  the  contract,  should  prevail.108  The  guarantor's 
liability  must  not  be  enlarged  by  implication,  nor  must  he  be 
held  for  purchases  made  by  another  for  an  indefinite  time  nor 
for  an  unlimited  extent,  unless  the  intent  of  the  guarantor  so  to 
bind  himself  is  clearly  manifest.109 

A  guaranty  should  be  liberally  construed  according  to  the 
intention  of  the  parties  as  manifested  by  the  terms  of  the  con- 
tract taken  in  connection  with  the  subject  matter,  and  in  order 
to  ascertain  the  intention  of  the  parties  the  circumstances  of  the 
whole  transaction  must  be  considered.110  But  the  words  of  the 
contract  cannot  be  enlarged  beyond  their  natural  import  in 
favor  of  the  guarantor,  nor  restricted  in  aid  of  the  creditor. 
The  circumstances  accompanying  the  whole  transaction  may  be 
looked  to  in  ascertaining  the  intention  of  the  parties.111  A  con- 
tract of  surety  must  have  such  a  construction  given  to  it  as  will 
carry  out  the  intention  of  the  parties ;  a  contract  of  guaranty  is 
not  to  be  interpreted  by  any  different  rule.  So  where  a  party 
guaranties  that  a  minor  will  ratify  a  sale  of  land  made  to  him 
when  he  arrives  at  majority,  and  also  the  notes  given  in  payment 
for  the  land,  a  ratification  of  the  sale  and  notes  upon  his  becom- 
ing of  age  will  release  the  guarantor,  because  it  was  not  a  per- 

104  Taussig  v.  Reid.  145  111.  488;  Lawrence  v.  McCalmont,  2  How.  426; 
Dobbins  v.  Bradley,  17  Wend.  422;  Drummond  v.  Prestman,  12  Wheat.  515. 

107  Douglass  v.  Reynolds,  7  Pet.  113;  Hargreaves  v.  Smee,  G  Bing.  244; 
Mayer  v.  Isaacs,  6  Mees.  &  W.  605. 

108Rouss  v.  Cregler,   103  Iowa,  60. 

109  Dry  Goods  Co.  v.  Yearont,  59  Kan.  684;  Jack  v.  Smsheimer,  125  Cal. 
563;  Harvey  v.  Bank   (Neb.),  76  N.  W.  Rep.  870. 

110  Hooper  v.   Hooper,   81   Md.   155. 

luLee  v.  Dick,  10  Pet.  482;  Mauran  v.  Bullus,  16  Pet.  528;  Bell  V. 
Bruen,  1  How.  169;  Davis  v.  Wrells,  104  U.  S.  159. 


262  SURETYSHIP  AND  GUARA.  (Cll.  13 

sonal  guaranty  of  payment  of  the  notes,  but  only  that  the  minor 
would  not  repudiate  the  transaction  at  majority;  for  the  only 
purpose  of  the  execution  of  such  contract  was  that  the  indebted- 
ness should  not  be  repudiated  or  payment  refused  on  account  of 
the  age  of  the  maker  of  the  notes,  as  manifested  by  the  intention 
of  the  parties  and  the  circumstances  surrounding  the  whole 
transaction.112  But  the  authorities  are  in  conflict.  In  some 
cases  a  strict  interpretation,  it  is  said,  should  be  in  favor  of  the 
guarantor.113  Other  decisions  hold  that  such  contract  should  be 
construed  like  other  contracts.114  Still  others  hold  that  the  con- 
tract is  not  to  be  construed  strongly  in  favor  of  or  against  the 
guarantor.115  And  others  hold  that  there  should  be  a  reasonable 
interpretation  according  to  the  intention  of  the  parties.116 

The  construction  of  letters  of  credit  should  be  reasonable  and 
liberal,  so  as  to  render  them  safe  to  rely  on.117  If  the  credit  is 
limited,  the  party  advancing  on  the  faith  of  the  letter  is  bound 
at  his  peril  to  ascertain  whether  the  authority  conferred  has  been 
exhausted.118  Thus,  a  guaranty  for  goods  sold  on  six  months' 
credit  does  not  cover  a  four  months'  credit;119  the  credit  must 
be  according  to  the  terms  of  the  letter.120 

§  357.  Negotiability  of  a  Guaranty. — A  general  guaranty 

1U  Storr  v.  Milliken.  ISO  111.  458. 

113  Drummond  v.  Prestman,  12  Wheat.  515;  Bright  v.  McKnight,  1 
Sneed,  164. 

114  Wills  v.  Ross.  77  Ind.  1:  Smith  v.  Molleson.  14S  N.  Y.  246:  London, 
etc.,  Bank  v.  Parrott,  125  Cal.  472. 

m  White  v.  Reed,  15  Conn.  457;  Mussey  v.  Raynor,  22  Pick.  22S:  Crist  v. 
Burlingham,   62   Barb.   351. 

"•  Peoria  Sav.,  etc..  Co.  v.  Elder,  105  111.  55;   Davis  v.  Wells.  104  U.  S. 

159;  Shickle.  etc..  Iron  Co.  v.  Water  Works  Co..  83  Iowa,  396;  Mathews  v. 

-.  61   Mich.  327;   Shine  v.   Bank.  TO  Mo.  524;   Tootle  v.  Elgutter,   14 

Neb.   160;   Bennett  v.  Draper.  139  X.  Y.  272:   Birdsall  v.  Heacock.  32  Ohio 

St.  177;  Wiler  v.  Henarie,  15  Oreg.  28;  Gardner  v.  Watson,  76  Tex-J^ 

117  Lawrence  v.  McCalmont,  2  How.  426:   iMloni  v.  Freeborn.  63  X.  Y.  383. 

'  '  1:  -  x.  26,    Compare  Russell  v.  Wiggin,  2  Story, 

213. 

"•  Leeds  v.  Dunn,  10  X.  Y.  475. 

""  Dodge  v.  Myer,  1  Cal.  405. 


§    357)  GUARANTY.  263 

is  assignable  with  the  obligation  secured  thereby,  and  it  goes 
with  the  principal  obligation,  and  is  enforceable  by  the  same 
persons  who  can  enforce  the  obligation.1'"1  The  rule  is,  as  to 
general  guaranty,  that  the  transfer  of  a  note  carries  with  it  all 
security,  even  if  there  is  no  formal  assignment  or  delivery,  or 
mention  of  the  guaranty.122 

This  rule  is  so  because  a  general  guaranty  is  one  open  for 
acceptance  by  the  whole  world.  But  a  special  guaranty  is  dif- 
ferent; it  is  limited  to  a  person  to  whom  it  is  addressed,  and 
usually  contemplates  a  trust  or  repose  of  confidence  in  such  per- 
son, and  may  not  be  assignable  until  a  right  of  action  has  arisen 
thereon.123  But  when  one  purchases  a  note  which  is  secured 
by  a  general  guaranty,  he  is  entitled  to  the  benefit  of  such  guar- 
anty, though  he  buys  in  ignorance  thereof.124 

But  there  is  conflict  among  the  authorities  on  the  negotiability 
of  a  guaranty.  It  is  held  that  a  guaranty  of  a  note  or  bill 
contained  in  a  separate  instrument  is  not  negotiable  merely  be- 
cause the  paper  guaranteed  has  that  quality.  So  a  guaranty 
may  be  assigned  with  the  note  and  the  holder  will  thereby  be 
invested  with  the  equitable  title  thereof  as  between  the  parties.125 
In  a  number  of  cases  it  is  held  that  a  guaranty  indorsed  on  a 
note  passes  with  the  note  in  the  hands  of  a  bona  fide  holder.126 
Other  cases  hold  that  a  guaranty  cannot  be  transferred  to  a  third 
person  so  as  to  authorize  him  to  proceed  in  his  own  name  on 

121  Claflin  v.  Ostrom,  54  N.  Y.  581 ;  Everson  v.  Gere,  122  N.  Y.  290;  Lane 
v.  Duchac,  73  Wis.  655;  Tidionte  Sav.  Bank  v.  Libbey,  101  Wis.  193. 

'"Carpenter  v.  Longan,  1G  Wall.  271;  Croft  v.  Bunster,  9  Wis.  503; 
Commercial  Bank  v.  Provident  Institution,  59  Kan.  361;  Ellsworth  v. 
Harmon,  101  111.  274;  Reed  v.  Garvin,  12  Serg.  &  R.  100;  Harbord  v. 
Cooper,  43  Minn.  466;  Stillwell  v.  Northrup,  109  N.  Y.  473;  Jones  v.  Berry- 
hill,  25   Iowa,   289. 

128  Jex  v.  Straus,  122  N.  Y.  293,  distinguishing  Evansville  Nat.  Bank  v. 
Kauffmann,  93  N.  Y.  273. 

1,4  Tidionte  Sav.  Bank  v.  Libbey,  101  Wis.  193. 

"'Arents  v.  Commonwealth,  18  Gratt.  770;  McLaren  v.  Watson,  26 
Wend.  425. 

128  Webster  v.  Cobb,  17  111.  466;  Commercial  Bank  v.  Provident  Inst.,  59 
Kan.  361;   State  Nat.  Bank  v.  Haylen,  14  Neb.  480. 


264  SUKETYSHIP  AND  GUAKANTY.  (Ch.  13 

the  guaranty  against  the  guarantor,127  and  this  applies  whether 
indorsed  on  the  note  by  the  payee,128  or  by  a  third  party.129 
Another  class  of  cases  holds  that  the  transferee  may  sue  in  his 
own  name,  but  takes  the  instrument  with  all  the  equities  while 
in  the  hands  of  the  assignor.130 

A  letter  of  credit  addressed  to  a  particular  person  is  not 
assignable.131  When  bonds  are  made  payable  to  bearer,  if  the 
guaranty  is  indorsed  thereon,  it  passes  with  the  bond.132  Some 
authorities  hold  that  the  assignee  of  the  bond  must  bring  suit 
in  the  name  of  the  assignor  for  his  use.133 

Generally  the  guaranty  of  a  mortgage  passes  with  it.134 

§  358.  Negotiability  of  Guakanty  Under  Seal. — No  one 
but  the  party  to  whom  the  guaranty  under  seal  is  given  can  sue 
on  it,  although  given  for  the  benefit  of  others.135  This  is  the 
general  rule,  but  there  are  a  few  cases  that  hold  that  the  party 
for  whose  use  the  contract  is  made,  which  is  evidenced  by  the 
contract  itself,  may  sue  in  his  own  name,  and  that  such  guaranty 
under  seal  is  negotiable.136     Thus,  in  Illinois,  a  third  party  for 

"7Tuttle  v.  Binney,  12  Met.  452;  Tinker  v.  MeCauley,  3  Mich.  188; 
Miller  v.  Gaston,  2  Hill  (N.  Y.),  192:  MeDoal  v.  Yeomans,  8  Watts,  361; 
Ten  Eyek  v.  Brown,  3  Pin.  (Wis.)  452;  Edgerly  v.  Lawson  (Mass.),  57 
N.  E.  Rep.  1020. 

mTuttle  v.  Bartholomew.  12  Met.  452;  MeDoal  v.  Yeomans,  8  Watts,  361. 

129  True  v.  Fuller,  21  Pick.   140. 

""Central  Trust  Co.  v.  Bank,  101  U.  S.  68;  Dubuque  First  Nat.  Bank  v. 
Carpenter,  41  Iowa,  518;  Phelps  v.  Church,  65  Mich.  231;  Phelps  v.  Sar- 
gent, 69  Minn.  118;  Everson  v.  Gere,  122  N.  Y.  290. 

131  Robbins  v.  Bingham,  4  Johns.  476. 

131  Louisville  Trust  Co.  v.  Railroad  Co.,  75  Fed.  Rep.  433;  Lemmon  ▼. 
Strong,  59  Cojin.  448;  Craig  v.  Parks,  40  N.  Y.  181;  Wooley  v.  Moore,  61 
N.  J.  L.  16. 

,3>  Ashland  Bank  v.  Jones,  16  Ohio  St.  145;  Smith  v.  Dickinson,  6  Humph. 
261;  Reed  v.  Garvin,  12  S.  &  R.  100. 

1MStillman  v.  Northrup,  109  N.  Y.  473.  See,  also,  Tucker  v.  Blandin,  48 
Hun,  439;   125  N.  Y.  69.     Compare  Briggs  v.  Latham.  36  Kan.  206. 

m Farmington  V.  Hobert,  74  Me.  416;  Huntington  v.  Knox,  7  Cush.  374; 
Henrietta  v.  Englert,  137  N.  Y.  488;  Loeb  v.  Harris,  50  N.  J.  L.  382; 
De  Bolle  v.  Ins.  Co.,  4  Whart.  68;  Flynn  v.  Ins.  Co.,  115  Mass.  449;  Woon- 
socket  Rubber  (<>.  v.   Banigan    (R.  I.),  42  At.  Rep.  512. 

"•Coater  v.  Mayor,  43  \.  Y.  399;  lloughten  v.  Milburn,  54  Wis.  554; 
Rogers  v.  Gosncll,  51    Mo.   4t;c>;    Buckabee  v.   May,  14  Ala.  263. 


§    359)  GUARANTY.  265 

whose  benefit  a  contract  is  made  may  bring  assumpsit  in  his  own 
name,  on  the  contract,  whether  the  contract  is  simple  or  under 
seal.137 

§  359.  Guaranty  of  Collection. — A  guaranty  of  a  collec- 
tion of  a  note  or  debt  is  different  from  a  guaranty  of  payment. 
On  the  subject  of  guaranty  of  payment,  the  rule  is  not  uniform. 
One  line  of  decisions  hold  that  a  guaranty  of  the  collection  of  a 
note,  that  it  is  not  necessary  for  the  holder  to  try  collection  by 
legal  proceedings,  provided  it  would  be  of  no  avail.138  The 
guaranty  is  that  the  guarantor  will  pay  if  the  holder  uses  due 
diligence  and  fails  to  collect.  He  must  employ  the  usual  means 
to  collect  of  the  maker,  unless  such  means  would  be  unavailing 
on  the  account  of  the  insolvency  of  the  maker.139  So  if  a  suit 
would  be  unavailing,  and  this  can  be  shown,  then  the  guarantor 
becomes  liable  without  suit  brought  against  the  principal.140 

In  other  jurisdictions  the  grantor  becomes  liable  only  after 
the  note  has  been  sued  upon  and  by  due  diligence  it  could  not 
be  collected.141 

The  rule  is  that  the  guarantor  agrees  to  pay  the  debt  in  case 
it  cannot  be  collected  out  of  the  principal  debtor  by  the  exercise 
of  due  or  reasonable  diligence.  This  diligence  is  held  to  be  a 
suit  against  the  principal  debtor,  a  judgment,  issuing  of  execu- 
tion and  its  return  unsatisfied.     But  the  better  doctrine  is  that 

"'Webster  v.  Fleming,  178  111.  140,  affirming  Dean  v.  Walker,  107  III. 
540,  and  overruling  Harms  v.  McCormick,   132  111.   104. 

138McDoal  v.  Yeomans,  8  Watts,  301  ;  McClurg  v.  Fryer,  15  Pa.  St.  293; 
Sanford  v.  Allen,  1  Cush.  473;  Middle  States,  etc..  Co.  v.  Engle,  45  W.  Va. 
588 ;  Wheeler  v.  Levis,  1 1  Vt.  265 ;  Central  Investment  Co.  v.  Miles,  56 
Neb.  272;  Dewey  v.  Investment  Co.,  48  Minn.  130;  Beardsley  v.  Hawes,  71 
Conn.   39. 

1S9Dillman  v.  Nadelhoffer,  160  111.  121;  Bester  v.  Walker,  4  Gil.   (111.)   3. 

140  Thompson  v.  Armstrong,  Breese  (111.),  53;  Stone  v.  Rockefeller,  29 
Ohio  St.  625;  Camden  v.  Doremus.  3  How.  515. 

141  Salt  Springs  Nat.  Bank  v.  Pratt,  135  N.  Y.  423;  Moakley  v.  Biggs, 
19  Johns.  69;  Craig  v.  Parks,  40  N.  Y.  181;  Gettig  v.  Sehautz,  101  Wis. 
229;  French  v.  Marsh,  29  Wis.  649;  Voorhies  v.  Atlee,  29  Iowa,  49;  Bos- 
man  v.  Akeley,  39  Mich.  710.  See,  also,  Ely  v.  Bibb,  4  J.  J.  Marsh.  (Ky.) 
71;  ghepard  v-Shears,  35  Tex.  763. . 


266  SURETYSHIP    AND    GUARANTY.  (Ch.  13 

if  it  can  be  shown  that  the  principal  debtor  is  insolvent,  no  suit 
need  be  brought  against  him  in  order  to  make  the  guarantor 
liable. 

But  where  a  party  holds-  a  note  secured  by  mortgage,  sells  the 
note  and  guarantees  its  collection,  and  at  the  same  time  assigns 
the  mortgage,  thereby  furnishing  the  purchaser  the  means  of 
obtaining  payment  of  any  part  or  the  whole  of  the  debt,  it  may 
well  be  claimed  that  the  plain  import  of  the  guarantor's  contract 
is  that  he  will  pay  the  debt,  provided  that  by  due  diligence 
it  cannot  be  collected  out  of  the  debtor  or  out  of  the  mortgage, 
and  that  he  will  not  be  held  liable  until  the  mortgage  security 
has  been  exhausted  or  resorted  to  without  avail.142 

If  a  party  guarantees  the  payment  of  a  debt,  it  is  absolute,  and 
he  becomes  liable  as  soon  as  it  becomes  due  and  remains  un- 
paid.143 And  a  guarantor  upon  an  original  undertaking  is 
liable  with  the  principal  debtor;  his  guaranty  is  absolute,  and 
he  becomes  absolutely  liable  for  breach  of  the  principal  con- 
tract.144 

Where  the  maker  of  a  note  becomes  insolvent  and  a  non- 
resident before  maturity  of  the  debt,  the  payee  need  not  follow 
the  maker,  but  may  sue  the  guarantor  on  the  note;145  and  the 
burden  of  proof  is  on  the  guarantor  to  show  that  the  non-resident 
had  property  within  the  State  where  he  formerly  resided,  suffi- 
cient to  settle  the  debt  or  part  of  it.14,i 

§  360.  What  is  Due  Diligence. — One  class  of  cases 
holds  that  the  guarantor  agrees  to  pay  the  debt  upon  the  condi- 
tion that  the  guarantee  should  diligently  prosecute  the  principal 
debtor  without  avail,  using  all  ordinary  legal  means  to  that  end, 
and  exhaust  any  security  that  he  may  have,  before  proceeding 

141Borman  v.  Carhartt,  10  Mich.  338;  Borden  v.  Gilbert,  13  Wis.  670; 
Brainard  v.  Reynolds,  36  Vt.  614;  Dewey  v.  Investment  Co.,  48  Minn.  130. 
Compare  Jones  v.   Ashford,  79   N.   Car.   172. 

"*  T>-<.nliar.it  r.   Bank,  56  Neb.  38. 

'"  Bagley  v.  Cohen    121  Cal.  604. 

"•Fall  v.  Sbumaiw,  f',7  Minn.  83. 

"•Fall  v.  Youmans,  67   Minn.  83. 


§    361)  QTJARANTY.  267 

against  tho  guarantor  by  suit;  that  due  diligence,  in  the  ab- 
sence of  any  .special  facts,  requires  the  institution  of  a  suit  at 
the  first  regular  term  after  maturity  of  the  obligation,  and 
obtaining  of  judgment  and  execution  thereon  as  soon  as  practi- 
cable by  the  ordinary  rules  and  practices  of  courts.117  And 
this  condition  is  not  satisfied  or  done  away  with  by  proof  that 
the  principal  was  insolvent  and  that  an  action  against  him  might 
have  been  fruitless.148  However,  a  mere  delay  to  prosecute  the 
principal  for  a  short  time  is  not  sufficient  to  negative  the  use 
of  due  diligence ;  but  such  delay  may  be  continued  so  long  as  to 
release  the  guarantor  as  a  matter  of  law.149  Thus,  a  delay  of 
four  months  to  begin  suit  does  not  show  diligence.150  And  a 
failure  to  sue  promptly  for  each  installment  of  interest  when 
due,  will  operate  to  discharge  the  guarantor  as  to  such  interest.151 
When  the  legal  holder  relies  on  diligence  by  action,  he  must 
institute  suit  against  the  debtor  at  the  first  term  of  the  proper 
court  after  action  has  accrued,  and  must  prosecute  such  proceed- 
ings to  judgment  and  execution  at  the  earliest  period  within  his 
power,  and  if  any  delay  is  had  in  obtaining  judgment,  such 
result  must  not  grow  out  of  his  consent  or  his-  knowledge.  In 
those  States  where  the  obligee  is  not  required  to  bring  suit  on 
account  of  the  insolvency  of  the  debtor,  it  is  a  condition  prece- 
dent to  the  recovery  against  the  guarantor,  that  the  obligee  shows 
such  insolvency.152 

§  361.  Discharge  of  Guarantor. — The  general  rule  is  if 
the  creditor  does  an  act  which  injures  the  guarantor  or  his 
rights,  or  fails  to  do  an  act  which  his  duty  enjoins  upon  him, 

147Voorhies  v.  Atlee,  29  Iowa,  49;  Salt  Spring  Nat.  Bank  v.  Pratt,  135 
N.  Y.  423;  Getty  v.  Sohautz,  101  Wis.  229. 

""French  v.  Marsh.  29  Wis.  649;  Getty  v.  Schantz,  101  Wis.  229;  Salt 
Springs  Nat.  Bank  v.  Sloan,  135  N.  Y.  371;  Northern  Ins.  Co.  v.  Wright, 
76  N.  Y.  445. 

""Day  v.  Elmore,  4  Wis.  190;  McFarlane  v.  Milwaukee,  51  Wis.  691; 
Sherman  v.  Pedick,  35  App.  Div.  15. 

160  Salt  Springs  Nat.  Bank  v.  Pratt,  135  N.  Y.  423. 

161  Sherman  v.  Pedrick,  35  App.  Div.   15. 
1MDillman  v.  Nadelhoffer,   160  111.   121. 


268  SURETYSHIP    AND    GUARANTY.  (Ch.  13 

and  such  omission  injures  the  guarantor,  lie  is  discharged ;  and 
he  is  released  from  liability  whenever  the  terms  of  the  contract 
have  been  materially  altered,  for  a  guarantor,  like  a  surety, 
may  stand  upon  the  very  terms  of  his  undertaking.153  The 
change  of  time  of  performance  of  the  contract  without  his  con- 
sent will  discharge  him.154  So  where  bonds  are  guarantied  to 
be  paid  at  a  certain  time,  the  guarantor  is  not  liable  until  that 
times  arrives,  though  the  principal  may  be  liable  before.155 
And  a  dissolution  of  a  firm  to  whom  the  guaranty  is  addressed, 
will  work  a  revocation.156  And  whenever  the  debt  is  satisfied, 
either  by  payment  in  money  or  by  property,  the  guarantor  is 
discharged.157 

§  362.  Discharge  by  Change  in  the  Principal  Contract. 
t — Any  material  alteration  in  the  contract  of  guaranty  dis- 
charges the  guarantor.153  And  so  a  guarantor  is  entitled  to  the 
benefit  of  a  security  given  by  his  principal,  and  if  it  is  surren- 
dered without  his  consent  he  is  released.159  But  the  change  in 
the  form  of  the  debt  does  not  injure  the  guarantor.  Thus,  the 
change  of  part  of  an  account  into  notes  does  not  affect  the  liabil- 
ity of  the  guarantor.160  And  so  if  the  change  is  void  for  want 
of  consideration,  it  does  not  affect  the  guarantor,  and  he  is  not 
discharged.161 

If  the  guarantor's  liability  is  increased  by  a  subsequent  agree- 
ment, he  is  discharged.  Thus,  where  he  guarantees  the  fidelity 
of  an  agent  working  as  salesman /in  a  limited  territory,  and 

153  Holmes  v.  Williams,  177  111.  386;  Black's  Appeal,  83  Mich.  513;  Boalt 
v.  Bmwn,  13  Ohio  St.  364;  Cambria  Iron  Works  v.  Keynes,  56  Ohio  St.  501. 

«■  King  v.  Newman,  54  Ohio  St.  273. 

165  Union  Trust  Co.  v.  Motor  Co.   (Mich.),  76  N.  W.  Rep.  212. 

"»  Schoonover  v.  Osborne   (Iowa),  79  N.  W.  Rep.  263. 

'"Rudolph  v.  Hewitt,  11  S.  Dak.  646. 

"'Pahlman  v.  Taylor,  75  111.  629;  Marsh  v.  Griffin,  42  Iowa,  403;  Fulman 
v.  Scitz,  68  Pa.  St.  237;  State  v.  Pepper,  31  Ind.  76;  Boalt  v.  Brown,  13 
Ohio  St.  364;  Tolman  v.  Griffins,  111  Mich.  301. 

"•  Foerderer  v.  Moors,  91    Fed.   Rep.  476. 

,M  Lennox  v.  Murphy,  171  Mass.  370;  Norton  v.  Eastman,  4  Me.  521. 

'•'  Staughter  v.  Moore,  17  Tex.  Civ.  A  pp.  233. 


§    363)  GUARANTY'.  269 

without  his  consent  the  territory  is  increased,  he  is  discharged, 
and  he  is  not  liable  for  defaults  of  the  agent  after  such  in- 
crease.162 

But  a  guarantor  is  not  released  by  a  collateral  agreement  to 
the  original  contract  by  his  principal,  which  alters  no  provision 
of  the  original  contract  or  any  obligation  growing  out  of  it;163 
nor  by  an  additional  contract;104  nor  because  the  obligee  takes 
additional  security  from  the  principal.165  Changing  the  con- 
tract so  as  to  include  interest  will  release  the  guarantor,166  or  a 
change  in  the  form  of  the  obligation,167  or  giving  credit  in  cases 
of  the  guaranty,168  or  change  in  building  contract,169  or  by  the 
delivery  of  goods  instead  of  money,170  or  by  the  misapplication 
of  the  guaranty  to  a  pre-existing  debt,171  or  by  giving  another 
note  in  the  place  of  the  one  guaranteed,172  or  by  accepting  notes 
other  than  those  guaranteed.173  If  the  same  kinds  of  goods 
with  same  price  are  accepted,  the  guarantor  is  not  released.174 

§  363.  Discharge  by  Extension  of  Time. — In  order  that 
a  guarantor  may  be  discharged  by  the  extension  of  time,  there 
must  be  a  binding  agreement  between  the  creditor  and  the  prin- 
cipal entered  into  without  the  consent  of  the  guarantor,  founded 
upon  a  valuable  consideration,  for  the  extension  of  the  time  for 
a  definite  period.175  A  mere  delay  of  the  creditor,  when  he  is 
not  bound  to  act  with  promptness,  in  enforcing  payment  will  not 

183  Plunkett  v.  Machine  Co.,  84  Md.  529. 

163  Morrill  v.  Boggott,  157  111.  240. 

164  Roberts  v.  Sully,  2  App.  Div.  152. 

166  Trustees    v.    Gilliford,    139    Ind.    524. 

166  Springer  Litho.  Co.  v.  Wavey,  97  Cal.  30. 

167  Buch  v.  De  Rivera,  53  Hun,  367 ;  Backhouse  v.  Hall,  6  B.  &  S.  507. 
18S  Kimball  v.  Baker,  62  Wis  526.  Compare  Fisk  v.  Stone,  6  Dak.  35. 
M*  Judah  v.  Zimmerman,  22  Ind.  388. 

170  Wight  v.  Johnson,  8  Wend.   512. 

mGlyn  v.  Hertel,   8   Taunt.   208. 

172  Weed  v.  Grant,  30  Conn.  74. 

"*  Davis  Sew.  Mach.  Co.  v.  McGinnis,  45  Iowa.  538. 

mQuinn  v.  Moss,  45  Neb.  614. 

17i  Dixon  v.  Spencer,  59  Md.  246;  Dodson  v.  Henderson,  113  111.  360. 


'270  SURETYSHIP  AND  GUARANTY.  (Cll.  13 

discharge  the  guarantor.176  If  the  guarantor  agrees  to  the  ex- 
tension, he  is  held  liable.177  If  the  contract  is  valid,  it  is  im- 
material whether  the  guarantor  is  actually  injured  by  the  exten- 
sion of  the  time  of  payment  of  the  debt,  for  the  benefit  of  the 
maker;  the  rule  as  to  a  guarantor  is  the  same  as  that  applicable 
to  a  surety.178 

A  guarantor  may  be  released  by  extension  of  time  of  payment 
or  shortening  of  time.179  The  extension  must  be  definite  and 
separate  from  the  principal  contract,180  and  founded  upon  a 
sufficient  consideration,181  and  for  a  definite  time.182 

§  364.  Discharge  by  Release  or  Negligent  Loss  of  Se- 
curities.— Where  a  guarantor  is  entitled  to  the  benefit  of  secur- 
ity given  by  the  principal  debtor  to  the  creditor,  a  release  or 
negligent  loss,  of  such  security  by  the  creditor  will  discharge 
the  guarantor  pro  tanto.185  Because  the  creditor  must  first  re- 
sort to  the  securities  for  payment  by  exercising  due  diligence,184 
in  order  that  the  guarantor  can  have  the  benefit  of  such  collat- 
erals.185 But  the  assignee  of  such  guarantied  note  is  under  no 
obligation  to  protect  the  guarantor,  by  resorting  to  the  property 
pledged  as  security  for  the  debt,  which  was  never  in  the  as- 
signee's possession  or  control.186  And  if  the  assignee  who  has  ex- 
hausted the  mortgaged  property  when  the  debt  is  due  by  legal 

"•Pittsburg,  etc.,  R.  R.  Co.  v.  Shaeffer,  59  Pa.  St.  350;  English  v.  Lan- 
don,  181  111.  614. 

"'Harvey  v.   Bank,  56  Neb.  320. 

178  Chicago,  etc.,   Bank  v.   Black,  72  111.  App.   147. 

"•Walrath  v.  Thompson,  6  Hill  (N.  Y.),  540;  Leeds  v.  Dunn,  10  N. 
Y.  469. 

180  Campbell  v.  Baker,  46  Pa.  St.  243. 

181  Robinson  v.  Dale,  38  Wis.  330;  Tatum  v.  Morgan  (Ga.),  33  S.  E.  Rep. 
940;  Hayes  v.  Wells,  34  Md.  512. 

m.Tarvis  v.  Hyatt,  43  Ind.  163.     See  sec.  42  et  seq.,  113  et  seq. 
™-  Foerderer  v.  Moors,  91  Fed.  Rep.  476;  Batcheldor  v.  Jennings,  83  111. 
App.  569. 
"•Middle  States,  etc.,  Co.  v.  Engle,  45  W.  Va.  588. 
"Holmes  v.  Williams,  177  111.  386;  Fuller  v.  Tomlinson,  58  Town.  111. 
m  Blanding  v.  Wilson,  107  Iowa,  46;  Fuller  v.  Tomlinson,  58  Iowa.   111. 


§    365)  GUARANTY.  271 

process  and  appropriates  the  amount  received  on  the  debt,  he 
discharges  his  duty  to  the  guarantor  of  the  debt,  whatever  may 
have  been  received  by  the  assignee.187 

Upon  an  absolute  guaranty  the  creditor  owes  no  duty  to  the 
guarantor  except  to  act  in  good  faith  and  not  to  be  guilty  of 
laches  to  his  prejudice.188  So  an  assignee  and  guarantor  of  a 
note  and  mortgage  cannot  be  discharged  from  liability  by  the 
release  of  the  mortgage  by  mistake,  where  the  release  has  been 
corrected,  and  the  mortgage  is  still  a  valid  lien  on  the  property 
as  against  the  mortgagor. 1S9 

§  365.  By  Fraud  and  Duress. — The  guarantor  may  be  dis- 
charged by  fraud  and  duress  on  the  part  of  the  guarantee  at  the 
inception  of  the  contract.  But  where  the  guarantor  knows  that 
the  undertaking  of  his  principal  is  liable  to  be  defeated,  he  must 
be  considered  as  entering  into  it  with  reference  to  such  contin- 
gency and,  of  course,  will  be  held  on  his  guaranty.190  But 
unless  fraud  is  clearly  shown,  the  guarantor  is  not  affected  by 
the  invalidity  of  the  original  obligation.191 

Where  a  party  assigns  an  instrument  and  guaranties  it,  he 
cannot  show  that  the  instrument  is  invalid.192 

If  the  guarantor  is  induced  by  fraud  to  guaranty  the  contract 
by  the  other  parties,  he  is  not  liable  ;193  but  if  the  guarantee  is  an 
innocent  party,  the  fraud  of  the  principal  will  not  avoid  the 
guaranty.194 


"'Holmes  v.  Williams.   177  111.  38G. 

188  Hubbard  v.  Haley,  96  Wis.  578. 

189  Kane  v.  Williams,  99  Wis.  65. 

190  Sterns   v.   Marks,   35    Barb.   565. 
191Purdy  v.  Peters,  35  Barb.  239. 

192  Remsen  v.  Graves,  41  N.  Y.  475 ;  Zabriskie  v.  Railroad  Co.,  23  How. 
399;  Erwin  v.  Downs,  15  N.  Y.  576. 

"'Morrison  v.  Sehlesinger,  10  Ind.  App.  665;  Jungk  v.  Reed,  9  Utab.  49; 
New  Home  Sew.  Maeh.  Co.  v.  Simon  (Wis.),  80  N.  W.  Rep.  VI;  Rathbone 
T.  Frost,  9  Wash.  162. 

"'Anderson  v.  Warne,  71  111.  20;  Powers  v.  Clarke,  127  N.  Y.  417. 


2~2  suretyship  axd  guaranty,  (cl  13 

§  366.  Guaranty  Covers  Defects  in  the  Original  Con- 
tract— Failure  of  Consideration. — A  guaranty  of  a  defect- 
ire  contract  is  valid.  Thus,  where  the  deht  is  justly  owing,  the 
guarantor  is  liable,  though  some  defect  or  incapacity  of  the 
principal  the  debt  could  not  be  enforced  against  the  latter.195 
So  a  guaranty  of  a  lease  is  valid,  though  only  one  of  two  lessees 
executed  the  lease.196  So  the  guarantor  of  a  note  purporting  to 
be  made  by  two,  where  the  signature  of  one  is  unauthorized,  is 
liable.197  If  the  contract  becomes  invalid  for  want  of  considera- 
tion, then  the  guarantor  is  released.198 

§    367.    Ee VOCATION    OF    A    CONTINUING    GUARANTY. UllleSS 

the  terms  of  a  continuing  guaranty  forbid,  it  may  be  revoked  on 
notice.199  Such  guaranty  is  revocable  at  the  pleasure  of  the 
guarantor  unless  made  to  cover  some  specific  transaction  which 
is  not  exhausted,  or  unless  it  be  founded  upon  a  continuing  con- 
sideration, the  benefit  of  which  the  guarantor  cannot  or  does  not 
renounce.200  And  the  fact  that  the  instrument  is  under  seal 
cannot  change  this  rule.201 

§  36S.  Death  of  Guarantor. — The  effect  of  the  death  of  the 
guarantor  upon  a  continuing  guaranty  has  been  determined  dif- 
ferently by  different  courts.  In  some  jurisdictions  the  death  is 
held  to  work  a  revocation  of  the  guaranty.  The  guarantor's 
estate  is  held  bound  in  contracts  upon  which  the  liability  exists 
at  the  time  of  his  death,  although  it  may  depend  upon  future 
contingencies.     But  it  is  not  held  for  liability  which  is  created 

"•Erwin  v.  Downs,  15  X.  Y.  576. 

19«  McLaughlin   v.   McGovern.   34   Barb.   208. 

"*  Sterns  v.  Marks.  35  Barb.  565. 

"•Sawyer  v.  Chambers.  43  Barb.  622;  Cooper  v.  Joel.  1  DeG.  F.  Sc  J. 
240;  Harvey  v.  Laurie,  13  111.  App.  400:  Mowing,  etc..  Machine  Co.  v. 
Land.  98  Ky.  576:  Carroll  County  Saw  Bank  v.  Strother,  28  S.  Car.  504. 

"•Gay  v.  Ward,  67  Conn.  147;  Coulthart  v.  Clementson.  5  Q.  B.  D.  42; 
Jordan  v.  Dobbins,  122  Mass.  168;  Agawam  Bank  v.  Strever,  18  N.  Y.  502. 

"•Allen  v.  Kenning.  9  Bing.  618:  Offord  v.  Daviea,  12  C.  B..  N.  S.  748. 

"■  Jordan  v.  Dobbins  122  Mass.  168;  Offord  v.  Davies.  12  C.  B..  N,  S. 
748;   Burgess  v.  Fve.  L.  R.  13  Eq.  450. 


§    369)  GUARANTY.  273 

after  his  death  by  the  exercise  of  a  power  or  authority  which  he 
might  at  any  time  revoked02 

But  in  other  jurisdictions  death  alone  does  not  revoke  a  con- 
tinuing guaranty,  because  it  is  not  a  mere  mandate  or  authority 
invoked  ipso  facto  by  the  death  of  the  guarantor ;  notice  must  be 
given  of  it  in  order  to  revoke  such  guaranty.203  Giving  notice 
of  death  brings  that  fact  within  the  knowledge  of  the  guarantee, 
and  is  therefore  a  proper  and  sufficient  notice  to  revoke  the 
guaranty,204  and  if  the  executor  is  not  empowered  to  continue 
the  guaranty,  the  guaranty  is  withdrawn.205  But  where  the 
guarantor  binds  not  only  himself,  but  his  representatives,  and 
representatives  include  his  executor,  then  notice  only  of  the 
death  of  the  guarantor  is  not  sufficient,  and  the  estate  is  liable 
for  indebtedness  incurred  by  the  principal  debtor  after  the 
guarantor's  death,  because  the  guarantee  was  entitled  to  rely 
on  the  express  provisions  of  the  contract  with  him,  and  can  not 
be  bound  to  take  notice  of  the  guarantor's  death  as  notice  from 
his  executor  to  determine  the  liability ;  to  absolve  the  estate  from 
further  liability,  the  executor  should  have  also  acted  in  his 
fiduciary  capacity,  and  withdrew  the  continuing  guaranty.206 

§  369.  Release  of  Co-Guarantor. — A  release  of  a  joint 
co-guarantor  without  the  consent  of  the  other  guarantors  will  re- 
lease them.  So  where  one  of  several  joint  obligors  -withdraws 
from  the  undertaking  before  the  delivery  of  the  instrument,  and 
it  is  not  known  by  the  other  joint  obligors,  and  the  guarantee 
knowingly  accepts  such  contract,  the  other  co-guarantors  are 

105  Jordan  v.  Dobbins,  122  Mass.  168;  Hyland  v.  Habich,  150  Mass.  112; 
National  Eagle  Bank  v.  Hunt,  16  R.  I.  148;  Aitkin  v.  Lang  (Ky.),  51 
S.  W.  Rep.  174. 

203  Coulthart  v.  Clementson,  5  Q.  B.  D.  42 ;  Gay  v.  Ward,  67  Conn.  147. 
104  Gay  v.  Ward,  67  Conn.  147. 

106  National  Eagle  Bank  v.  Hunt,  16  R.  I.  148;  Harriss  v.  Fawcett,  L.  R. 
15  Eq.  311;  Coulthart  v.  Clementson,  5  Q.  B.  D.  42. 

**In  re  Silvester  (1895),  1  Ch.  573.  This  case  criticises  Coulthart  v. 
Clementson,  5  Q.  B.  Div.  42,  which  holds  that  the  guarantor's  will  should 
be  constructive  notice  that  the  guaranty  is  revoked  both  as  to  the  guaran- 
tor and  his  executor. 

18 


274  SURETYSHIP  AND  GUARANTY.  (Cli.  13 

released.207  One  reason  why  a  release  of  one  of  several  joint  co- 
obligors  discharges  all,  is  that  by  such  release  the  right  of  contri- 
bution is  cut  off.208 

§  370.  "What  Law  Governs. — It  is  a  general  rule  that  the 
lex  loci  contractus  determines  the  nature  and  legal  quality  of 
the  act  done,  whether  it  constitutes  a  contract,  the  nature  and 
validity,  the  obligation  and  legal  effect  of  such  contract,  and 
furnishes  the  rule  of  construction  and  interpretation.209  So  the 
law  of  the  State  where  the  contract  is  executed,  when  its  per- 
formance is  guaranteed,  and  where  the  contract  is  to  be  per- 
formed, determines  the  validity  of  the  guaranty,  although  suit 
is  to  be  enforced  in  another  State.210  And  so  where  a  contract 
is  executed  in  a  State  in  which  it  is  valid,  and  a  person  then 
agreeing  to  guarantee  its  performance,  the  guaranty  is  valid, 
though  it  is  actually  affixed  in  a  State  in  which  the  contract  is 
void.211  So  a  contract  of  guaranty  executed  in  one  State  of  the 
performance  of  a  contract  which  is  to  be  performed  there,  is 
governed  by  the  laws  of  that  State,  though  the  guaranty  is  made 
elsewhere.212  Thus,  the  law  of  the  place  where  a  letter  of  credit 
is  executed,  and  where  the  drafts  made  in  pursuance  thereof  are 
payable,  governs  the  obligation  of  those  who  sign  the  letter.2 13 

§  371.  Statute  of  Limitations. — The  statute  of  limitations 
begins  to  run  in  favor  of  the  guarantor  from  the  time  he  is  liable 
to  suit,  and  this  may  or  may  not  be  the  same  time  the  principal's 
debt  becomes  due.214  At  common  law  a  payment  made  upon  a 
note  by  the  principal  debtor  before  the  completion  of  the  bar  of 
the  statute  served  to  keep  the  debt  alive  both  as  to  himself  and 

307  Potter  v.  Gronbeck,  117  111.  404. 

208  Clark  v.  Mallory,  83  111.  App.  488;   185  111.  227. 

iM  Carnegie  v.  Morrison,  2  Met.  397. 

110  Russell  v.  Buck,   14  Vt.  147. 

111  Richter  v.  Frank,  41  Fed.  Rep.  859. 

"Cowles  v.  Townsend,  37  Ala.  77;  Cross  v.  Petree,  10  B.  Mon.  413. 
M  BiBBell  v.  Lewis,  4  Mich.  450. 

«*  Hooper  v.  Hooper,  81  Md.  15ft;  WofTord  v.  Unger.,  55  Tex.  480;  Stato 
Bank  v.  Knotts,  10  Rich.  L.   (S.  Car.)  543."' 


§    371)  GUAEA2TTY.  275 

the  surety  or  guarantor."  l0  This  is  the  rule  in  the  United 
States  where  it  has  not  been  changed  by  the  statute.-10  At  com- 
mon law  and  in  those  States  where  the  common  law  prevails,  a 
distinction  is  made  between  those  cases  in  which  a  part  paj  ment 
is  by  one  of  several  promisors  of  a  note  before  the  statute  of 
limitations  has  attached,  and  those  in  which  payment  is  made 
after  the  completion  of  the  bar  of  the  statute;  it  being  held  in 
the  former  that  the  debt  is  kept  alive  as  to  all,  and  in  the  latter 
that  it  is  revived  only  to  the  party  making  the  payment.-17  So 
under  the  common-law  rule,  part  payment  by  one  of  several 
joint  debtors  of  a  debt  barred  by  limitation,  revives  the  debt  as 
to  him,  and  forms  a  new  point  from  which  the  statute  begins  to 
run,  but  does  not  revive  it  as  against  the  other  joint  debtors  or 
guarantors.218  The  reason  of  this  rule  lies  in  the  principle  that 
by  withdrawing  from  a  joint  debtor  the  protection  of  the  statute, 
he  is  subject  to  a  new  liability  not  created  by  the  original  con- 
tract of  indebtedness,  and  so  cannot  be  held  by  the  act  of  his 
co-debtor. 

Where  the  guaranty  is  a  continuing  one,  on  which  loans  are 
made  from  time  to  time,  the  statute  of  limitations  does  not  begin 
to  run  in  favor  of  the  guarantor  until  default  of  payment  is 
made.219  And  it  seems  that  where  the  guaranty  is  limited  to  a 
single  transaction,  the  statute  begins  to  run  in  favor  of  the 
guarantor  from  the  time  when  the  guaranty  is  executed.220 

In  case  of  a  guaranty  of  a  signature  which  is  forged,  such 
guaranty  is  broken  when  made,  and  the  right  of  action  accrues 
at  once,  and  therefore  the  statute  begins  to  run  at  the  same 
time.221 

"•Whiteomb  v.  Whiting.  2  Doug.  652;  Burleigh  v.  Stott,  8  B.  &  C.  36; 
Wyatt  v.  Hodson,  8  Bing.  300:   Marnizinger  v.  Mohr,  41  Mich.  685. 

""National  Bank  v.  Cotton,  53  Wis.  317;  Quimby  v.  Putnam,  28  Me.  419. 

*1T  Atkins  v.  Tredgold,  2  B.  &  C.  23:  Sigourney  v.  Drury,  14  Pick.  387; 
Ellieott  v.  Nichols,  7  Gill  (Md.),  72;  Hooper  v.  Hooper.  81  Md.  155;  Kim- 
ball  v.  Cummins,  3  Met.   (Ky.)   327;  Biscoe  v.  Jenkins,  5  Eng.   (Ark.)   108. 

""Border  v.  Peay,  20  Ark.  203. 

"•State  Bank  v.  Knotts,   10  Rich.  L.    (S.   Car.)    543. 

mSollee  v.  Mengy,  Bailey  L.   (S.  Car.)   620. 

251  Lehigh  Coal,  etc.,  Co.  v.  Blakelee,  7  Pa.  Dist.  32. 


276  SURETYSHIP  AND  GUARANTY.  (Cll.  13 

A  guaranty  of  a  barred  debt  is  enforceable.222  After  the 
principal  contract  has  been  barred,  no  acknowledgment  of  it  by 
the  principal  can  take  it  out  of  the  statute  of  limitations  as  to 
the  guarantor.  The  acts  of  the  principal  in  such  case  has  no 
more  effect  on  the  guarantor  than  the  acts  of  a  stranger.223 

§  372.  Payment  of  Debt  by  Guarantor. — If  the  guaran- 
tor has  to  pay  the  debt  -when  due  he  has  an  immediate  right  of 
action  against  the  principaL224  And  after  he  has  paid  the  debt, 
payment  by  the  principal  to  another  co-guarantor  will  not  re- 
lease the  principal  from  his  obligation  to  pay  the  guarantor 
making  the  payment.225  And  if  the  guarantor  has  paid  a  debt 
guaranteed  verbally,  he  can  recover  against  the  principal,  and 
the  statute  of  frauds  will  be  no  defense  to  such  action,  although 
it  would  be  a  defense  to  an  action  brought  on  the  guaranty  ;22fl 
the  statute  can  have  no  operation  as  between  the  original  debtor 
and  his  guarantor.227 

22  Miles  v.  Linnel.  97  Mass.  298;  Jla^kj^  Neill,  22  Tex.  253;  Shadburne 
v.  Daly,  76  Cal.  355. 

323 Meade  v.  McDowell..  5  Bing.   (Pa.)    195. 

^Cotton  v.  Alexander,  32  Kan.  339;  Kinomel  v.  Lowe.  28  Minn.  265. 

mLowry  v.  Bank,  2  Watts  &  S.  210.  See,  also.  Slaughter  v.  Moore.  17 
Tex.  Civ.  App.  233.  r~"" 

^Beal  v.  Brown.  13  Allen,  114;  Cahill  v.  Bigelow,  18  Pick.  369,  372; 
Lee  v.  Stowe.  57  Tex.  444. 

*"  Godden  v.  Pierson.  42  Ala.  370;  Ame?  v.  Jackson.  115  Mass.  512;  Lee 
v.  Stowe,  57  Tex.  4-44;  Cahill  v.  Bigelow,  18  Pick.  369. 


§    373,  374)  THE   STATUTE   OF   FRAUDS.  277. 


CHAPTER  XIV. 

GUARANTY  WITHIN  THE  STATUTE  OF  FRAUDS. 

§  373.  Fourth  Section  of  the  Statute  of  Frauds. — The 
fourth  section  of  the  statute  of  frauds  provides  that  no  action 
shall  be  brought  whereby  to  charge  the  defendant  upon  any 
special  promise  to  answer  for  the  debt,  default  or  miscarriage  of 
another  person,  unless  the  agreement  upon  which  such  action 
shall  be  brought,  or  some  memorandum  or  note  thereof,  shall  be 
in  writing  and  signed  by  the  party  to  be  charged  therewith  or 
some  other  person  thereunto  by  him  lawfully  authorized.1  This 
statute,  with  few  modifications,  has  been  re-enacted  throughout 
the  United  States. 

§  374.  When  the  Promise  is  Within  the  Statute. — When 
the  contract  is  merely  one  of  guaranty,  that  is,  when  it  does  not 
impose  any  direct  liability,  and  consists  solely  in  an  engagement 
for  performance  by  the  principal,  it  is  manifestly  within  the 
terms  of  the  statute,  and  the  contract  must  be  in  writing.  And 
there  must  be  a  principal  debtor,  and  the  promise  must  be  made 
to  the  creditor  to  whom  the  principal  debtor  has  already  or  is 
thereafter  to  become  liabla  The  express  promise  must  create  a 
liability  to  pay  for  another ;  that  is,  the  promisor  must  agree  to 
pay  if  the  debtor  does  not,  and  the  promise  must  be  in  writing.2 

In  some  jurisdictions,  it  is  held  to  be  a  presumption  of  law 
that  if  any  contract,  beneficial  to  the  promisor,  is  the  object 
sought  to  be  obtained  by  his  promise,  he  must  be  understood  to 
intend  an  original  undertaking  which  is  not  within  the  statute.3 

1  29  Car.  2,  ch.  3. 

*  Elder  v.  Warfield,  7  H.  &  J.  (Md.)  391;  Birkmyr  v.  Darnell,  Salk.  27; 
Spear  v.  Bank,  156  111.  555. 

*  Westmoreland  v.  Porter,  75  Ala.  452;  Chapline  v.  Atkinson,  45  Ark. 
67;   Lerch  v.  Gallup,  67  Cal.  595.  j 


278  SURETYSHIP    AND    GUARANTY.  (Cll.   14 

As  a  general  rule,  in  order  that  the  promise  can  be  held  to  be 
within  the  statute,  it  is  essential  that  there  be  a  binding  and 
subsisting  obligation  or  liability  to  the  promisee,  to  which  the 
promise  is  collateral ;  that  is,  the  party  for  whom  the  promise  has 
been  made  must  be  liable  to  the  party  to  whom  it  is  made.4 

§  375.  Effect  of  the  Statute  of  Frauds. — In  some  States 
extension  of  time  to  pay  the  debt  to  a  certain  day,  by  paying 
interest,  is  no  consideration ;  but  where  this  is  a  consideration 
the  contract  must  be  in  writing.  Thus,  a  parol  agreement  by  the 
debtor  to  pay  interest  for  a  year  at  a  certain  rate  is  not  a  suffi- 
cient consideration,5  and  if  it  would  be  a  sufficient  consideration 
the  contract  must  be  in  writing.6  Under  the  statute  of  Illinois 
it  is  not  necessary  to  the  existence  of  a  valid  contract  to  extend 
the  time  of  payment  of  a  promissory  note  that  such  extension 
must  be  in  writing.  Because  the  extension  of  time  does  not 
abrogate  the  original  contract  so  as  to  make  an  entire  new  con- 
tract  resting  in  parol,  but  is  only  the  effect  of  extending  the  time 
of  payment  fixed  in  the  note  to  a  day  certain  in  the  future  for  its 
performance.  The  new  agreement  is  one  to  postpone  the  per- 
formance agreed  upon  for  a  definite  time  for  a  full  considera- 
tion.7 

§  37G.  Principal  Debtor — Incapacity  to  Contract. — 
Where  one  becomes  surety  for  the  performance  of  a  promise 
made  by  a  person  incompetent  to  contract,  his  contract  is  not 
purely  accessorial,  nor  is  his  liability  necessarily  ascertained  by 
determining  whether  the  principal  can  be  made  liable.  For  in- 
capacity of  the  principal  party  promising  to  make  a  legal  con- 
tract, if  understood  by  the  parties,  is  the  very  defense  of  the 

'Har^reaves  v.  Parsons,  13  Mees.  &  W.  5G1 ;  Eastwood  v.  Kenyon,  11 
Ad.  &  E.  438;  Westfall  v.  Parsons,  16  Barb.  645;  Preble  v.  Baldwin,  0 
Cush.  549;  Pratt  v.  Humpbrey,  22  Conn.  317;  Alger  v.  Scoville,  1  Gray, 
391;  Tigbe  v.  Morrison,  116  N.  Y.  263;   Ressiter  v.  Waterman,  151  111.  169. 

•Turner  v.  Williams,  73  Me.  466. 

•Berry  v.  Pulb-n,  69   Mo.   101. 

'Reynolda  v.  Barnard,  36   111.  App.  218. 


§    376)  THE    STATUTE   OF    FRAUDS.  2<3 

principal  for  which  the  surety  assures  the  promisee,   and  the 
surety  is  therefore  liable.8 

Where  there  is  no  fraud,  duress,  deceit  or  violation  of  law  or 
public  policy  on  the  part  of  the  payee  in  procuring  the  execution 
of  the  promise,  the  surety  in  such  case  is  liable,  although  the 
principal  be  not.9 

Thus,  a  minor's  contract  is  not  void,  but  voidable  at  his  elec- 
tion; and  until  it  is  avoided  it  is  a  valid  contract  Nor  can  a 
third  person  avail  himself  of  the  minority  of  a  debtor  to  obtain 
any  right  or  security  or  title.  Infancy  is  a  personal  privilege, 
of  which  no  one  can  take  advantage  exxcept  the  minor.10  So,  it 
is  said,  a  promise  by  a  party  to  pay  the  debt  of  an  infant,  though 
made  upon  a  sufficient  consideration,  is  a  promise  to  pay  the 
debt  of  another,  and  must  be  in  writing  to  be  enforceable;  the 
doctrine  that  there  was  no  debt  because  the  principal  debtor  was 
a  minor  cannot  prevail.11 

Some  courts,  however,  hold  that  in  case  of  a  guaranty  of  a 
person's  contract  who  is  incapacitated  to  contract,  the  guarantor 
is  not  liable.  As  soon  as  the  incompetent  principal  sets  up  his 
inability  to  make  the  contract,  the  debt  cannot  then  be  collected 
either  from  him  or  his  guarantor;  that  the  third  party  guaran- 
tied something  that  did  not  exist,  and  hence  he  is  not  liable.12 

Whether  this  doctrine  is  correct  admits  of  doubt  The  under- 
taking of  a  surety  is  immediate  and  direct  that  the  act  shall  be 
done;  if  not  done,  the  surety  becomes  at  once  responsible,  and 
the  creditor  may  sue  him  alone  or  him  and  the  debtor  together. 
In  case  of  guaranty  the  guarantor  undertakes  to  pay  if  the  prin- 
cipal cannot;  that  is,  he  is  liable  only  for  the  ability  of  the 
debtor  to  perform  this  act.     In  the  case  of  guaranty,  non-liabil- 

•Winn  v.  Sanford,   145  Mass.  302. 

•Davies  v.  Statts,  43  Ind,  103:  St.  Albans  Bank  v.  Dillon,  30  Vt.  122; 
Kimball  v.  Newall,  7  Hill,  116;  Jones  v.  Orosthwait,  17  Iowa,  393;  Weed 
Sewing  Mach.   Co.  v.  Maxwell,   63  Mo.  486. 

10  Kendall  v.  Lawrence,  22  Pick.  540. 

"Dexter  v.  Blanchard,  11  Met.  365;  Davis  v.  Statts,  43  Ind.  103. 

"King  v.  Summit.  73  Ird.  312;  Smith  v.  Hyde,  19  Vt.  54.     See  sec.  380. 


280  SURETYSHIP  AND  GUARANTY.  (Ch.  14 

ity  of  the  debtor  must  first  be  shown  before  the  guarantor  be- 
comes liable.13 

§  377.  New  Consideration. — The  general  rule  is  that  where 
there  is  in  existence  an  obligation  on  the  part  of  another  and  a 
promise  to  perform  that  obligation  if  he  does  not,  or  to  guaranty 
his  performance,  it  is  not  within  the  statute  if  it  is  made  upon 
a  new  consideration  inuring  to  the  benefit  of  the  promisor, 
although  the  former  obligation  is  not  extinguished,  provided  the 
chief  purpose  of  the  promisor  is  to  obtain  a  benefit  to  himself.14 

In  determining  whether  an  alleged  promise  is  or  is  not  a 
promise  to  answer  for  the  debt  of  another,  the  following  rules 
may  be  applied :  (1)  If  the  promisor  is  a  stranger  to  the  trans- 
action, without  interest  in  it,  the  obligations  of  the  statute  are 
to  be  strictly  upheld  as  a  collateral  undertaking;  (2)  but  if  he 
has  a  personal,  immediate  and  pecuniary  interest  in  the  trans- 
action in  which  a  third  party  is  the  original  obligor,  it  is  founded 
upon  a  sufficient  consideration,  and  is  valid  as  an  original  con- 
tract. The  real  character  of  a  promise  does  not  depend  alto- 
gether upon  form  of  expression,  but  largely  upon  the  situation 
of  the  parties,  and  upon  whether  they  understood  it  to  be  a  col- 
lateral or  direct  promise.15 

§  378.  Consideration  for  Promise. — A  contract,  whether 
required  to  be  in  writing,  to  be  valid,  must  be  based  upon  a  suffi- 
cient consideration.  So  where  a  creditor  accepts  from  a  third 
person  in  payment  and  satisfaction  of  his  debt,  the  obligation  of 
such  third  person,  it  is  a  new  undertaking,  and  not  within  the 

"Reijrart  v.   White,  52   Pa.   St.   440. 

14  Borchsenius  v.  Canuston,  100  111.  82;  Clifford  v.  Luhring,  69  111.  401; 
Power  v.  Rankin,  114  111.  52;  Westmoreland  v.  Porter,  75  Ala.  452;  Wil- 
liamson v.  Hill,  3  Mackay  (D.  C),  100:  Fears  v.  Story,  131  Mass.  47; 
Fitzgerald  v.  Morrissey,  14  Neb.  108;  Merriam  v.  McManus,  102  Pa.  St. 
102;  Whitehurst  v.  Hyman,  90  N.  Car.  487;  Lookout  Mountain  R.  R.  Co. 
v.  Houston,  85  Tenn.  224;  Spann  v.  Cochran.  (13  Tex.  240;,,  Voris  v.  Loan 
A»so.,  20  Ind.  App.  630;  Stebhins  v.  Scott.  172  Mass.  355;  Bluthenthal  T. 
Moore,  106  Ga.  424;   Craft  v.  Kendrick,  39  Fla.  90. 

"Davis  v.   Patrick,    141    U.   S.   479. 


§  379)  THE  STATUTE  OF  FKAUDS.  281 

statute  of  frauds,  but  the  contract  must  be  supported  by  a  suffi- 
cient consideration.16  There  must  be  a  sufficient  consideration 
in  every  case,  even  if  the  contract  is  in  writing.  But  a  con- 
sideration is  not  of  itself  sufficient  to  supply  the  place  of  a  writ- 
ing where  one  is  necessary.  To  take  the  case  out  of  the  statute, 
there  must  be  a  consideration  moving  from  the  promisor,  either 
from  the  creditor  or  debtor;  that  is  the  feature  which  imparts 
to  the  promise  the  character  of  an  original  undertaking.17 

§  379.  Third  Party  Taking  Debtor's  Property — Agree- 
ment to  Pay  Creditor. — A  debtor  may  place  his  property  in 
the  hands  of  a  third  party  for  the  purpose  of  having  it  converted 
into  money  to  pay  his  debt.  If  the  receiver  takes  the  property 
%for  such  purpose  and  promises  the  debtor  to  pay  such  debt,  the 
promise  need  not  be  in  writing.18  Thus,  where  lumber  was 
sold  to  A  on  the  credit  of  B,  and  A  pays  B  therefor,  a  promise 
by  B  to  the  vendor  to  pay  him  for  the  lumber  will  be  in  the 
nature  of  an  original  contract  to  pay  the  debt  of  a  third  party, 
founded  upon  a  sufficient  consideration,  and  not  within  the  stat- 
ute.19 But  the  property  must  be  placed  in  the  hands  of  a  third 
party  unconditionally,  and  the  third  party  must  take  it  for  that 
purpose.  If  the  third  party  has  the  liberty  to  pay  the  debt  out 
of  his  own  property,  and  not  out  of  the  debtor's,  then  a  promise 
to  pay  the  creditor  comes  within  the  statute.20  So  where  the 
assignee  arranges  to  pay  the  assignor's  debt  after  he  has  reduced 
or  converted  the  property  into  cash,  a  verbal  promise  to  the 
debtor's  creditor  before  such  conversion  into  money,  to  pay  the 
debt  is  void,  as  it  comes  within  the  statute.21 

Where  the  money  is  in  the  hands  of  the  promisor  no  written 
contract  is  required.     Thus,  where  a  party  agrees  to  pay  board 

"Carlisle  v.  Campbell,  76  Ala.  247. 
"Mallory  v.  Gillett,  21  N.  Y.  412. 

"Wait  v.  Wait,  28  Vt.  350;  Dork  v.  Boyd,  93  Pa.  St.  92. 
"Watkins  v.  Sands,  4   111.  Ann.  207. 

,0Ackley  v.  Parmenter,  98  N.  Y.  425;  Shaaber  v.  Buskong,  105  Pa. 
St.  514. 

21  Belknap  v.  Bender,  75  N.  Y.  446. 


282  SURETYSHIP    AND    GUARANTY.  (Ch.  14 

for  workmen,  and  has  the  money  for  that  purpose,  an  oral  con- 
tract is  sufficient.22 

§  380.  If  Third  Person  is  Xot  Liable. — Some  courts  hold 
that  if  the  third  person  is  not  liable,  then  the  undertaking  is  not 
within  the  statute.  This  doctrine  is  applied  where  the  promise 
to  answer  for  the  debt,  default  or  miscarriage  of  an  infant  or 
other  parties  incapacitated  to  make  a  valid  contract;  that  is, 
there  is  no  third  person  liable  in  contemplation  of  law.  and  the 
promise  is  not  within  the  statute,23  but  is  an  original  undertak- 
ing of  the  guarantor,  and  he  is  therefore  liable  as  on  any  other 
debt  he  may  contract.24  If  it  is  an  ultra  vires  contract  of  a  cor- 
poration, the  rule  is  the  same,  and  the  guarantor  alone  is 
liable.25 

3  381.  Original  Consideration. — The  statute  by  its  terms 
operates  on  cases  where  there  is  a  primary  or  original  debt  or 
obligation  upon  which  is  based  a  collateral  promise  of  another 
person,  to  answer  for  such  primary  or  original  debt  or  obligation. 
If  there  be  in  fact  no  such  primary  debt  or  obligation,  or  the 
same  is  extinguished  and  discharged,  or  if  the  promise  be  not 
to  answer  for  such  primary  debt  or  obligation,  or  if  it  be  a 
primary  or  direct  promise  for  a  sufficient  consideration,  the  stat- 
ute does  not  apply  or  require  a  promise  to  be  in  writing.  Be- 
cause the  statute  contemplates  the  mere  promise  of  one  person 
to  be  responsible  for  another,  and  cannot  be-  interposed  as  a 
cover  and  shield  against  the  actual  obligation  of  the  defendant 
himself.  If  the  third  person  makes  an  entire  but  substantial 
and  independent  contract  with  the  creditor  to  perform,  or  some 
service,  this  may  be  enforced  though  not  in  writing,  as  it  is  not 
collateral.20 

"Chicago,  etc..  Coal  Co.  v.  Liddell.  69  111.  639. 

"Harris  v.  Hunthaeh.  1  Bur.  373;  Chaoin  v.  Lapham.  20  Pick.  467; 
Anderson  v.  S pence,  72  Tnd.  315.     See  Bee.  370. 

"Harris   v.  Huntbach.   1    Bur.  373. 

■Drake  v.   Flewellen,   33   Ala.    IOC. 

■Yeoman  v.  Mueller.  33  Mo.  App.  343:  Gale  v.  Harp.  64  Ark.  462; 
Crawford  v.  Edison,  45  Ohio  St.  239;  Clifford  v.  Luhring,  69  III.  401 :  Haga- 


§    382)  THE   STATUTE    OF    FRAUDS.  2     3 

The  object  of  a  collateral  promise  is  to  promote  the  interest 
of  another:  the  object  of  an  original  promise  is  to  promote  the 
interest  of  the  party  making  the  promise.  The  former  is  within 
tho  operation  of  the  statute,  the  latter  is  not  affected  by  it. 
When  the  promisor  is  himself  to  receive  the  benefit  for  which  the 
promise  is  exchanged,  it  is  not  usually  material  whether  the 
original  debtor  remains  liable  or  not.27 

§  382.  Oral  Promise  to  Indemnify  Another. — The  gen- 
eral rule  is  that  an  oral  promise  by  one  person  to  indemnify 
another  for  becoming  a  guarantor  for  a  third  person  is  not 
within  the  statute,  and  need  not  be  in  writing,  for  the  assump- 
tion of  the  responsibility  is  a  sufficient  consideration  for  the 
promise.28     This  is  now  the  law  in  England.29 

Where  the  inducement  for  the  promise  of  indemnity  is  a  bene- 
fit to  the  promisor  which  he  did  not  have  before,  or  would  not 
otherwise  enjoy,  as  where  he  has  a  personal,  immediate  and 
pecuniary  interest  in  the  principal  transaction,  and  is  therefore 
himself  a  party  to  be  benefited  by  performance  on  the  part  of 
the  promisee,  the  contract  is  not  within  the  statute,  and  may  be 
supported  by  a  verbal  undertaking.  In  reality  the  undertaking 
is  to  pay  a  debt  which  is  in  substance  a  debt  of  the  promisor.30 
A  contract  of  indemnity  is  not  a  contract  with  the  creditor  to 
answer  for  the  default  or  miscarriage  of  the  debtor,  but  is  inde- 
pendent of  the  principal  contract  or  obligation,  and  constitutes 

dorn  v.  Stronach,  81  Mich.  56;  Fitzgerald  v.  Morrissey,  14  Neb.  198; 
Young  v.  French,  35  Wis.  Ill;  Lemmon  vT  Rnx,  20  Tp.x.  3J29;  Ttaylea  v. 
Wallace,  56  Hun,  428;  Jolly  v.  Walker,  26  Ala.  690;  Kilbride  v.  Moss,  113 
Cal.  432;  Learn  v.  Upstill,  52  Neb.  271.  Compare  Ellison  v.  Jackson,  12 
Cal.  542;  Noyes  v.  Humphreys,  11  Gratt.  635;  Ware  v.  Stephenson,  10 
Leigh,   155;    Puckett  v.   Bates,   4  Ala.   390. 

21  Calkins  v.  Chandler,  36  Mich.  324. 

18 Jones  v.  Bacon,  145  N.  Y.  446;  Chapin  v.  Merrill,  4  Wend.  657;  Tighe 
v.  Morrison,  116  N.  Y.  263;  Ross  v.  Wallenberg,  31  Oreg.  269 

■  Thomas  v.  Cook,  8  Barn.  &  C.  728;  Reader  v.  Kingham,  13  C.  B.,  N.  S. 
344;  Guild  v.  Conrad  (1894),  2  Q.  B.  885;  Wildes  v.  Dudlow,  19  Eq.  198. 

30  Smith  v.  Delaney,  64  Conn.  264;  Davis  v.  Patrick,  141  U.  S.  479; 
Potter  v.  Brown,  35  Mich.  274;  Emerson  v.  Slater,  22  How.  43. 


284  SURETYSHIP    AND    GUARANTY.  (Ch.  14 

an  entirely  distinct  and  separate  undertaking  with  which  the 
creditor  has  nothing  to  do.  In  such  cases  the  assumption  of  lia- 
bility by  the  promisor  is  itself  a  sufficient  consideration  to  sup- 
port the  promise  regardless  of  any  subservient  interest  of  the 
promisor,  and  the  fact  of  his  becoming  co-surety  with  the  prom- 
isee to  it  need  not  be  in  writing.31  Indemnity  contracts  are 
not  within  the  statute,  as  they  are  not  made  to  pay  the  debt 
of  another  ;32  this  is  the  great  weight  of  authority  and  trend  of 
all  the  late  decisions  which  are  not  controlled  by  precedent.33 
This  doctrine  is  based  upon  the  ground  that  the  contract  of  in- 
demnity is  not  within  the  statute,  as  the  statute  concerns  only 
contracts  of  suretyship ;  that  the  contract  is  an  original  one, 
and  therefore  not  within  the  statute. 

But  another  line  of  cases  holds  that  an  indemnity  is  within 
the  statute  of  frauds,  because  wherever  there  is  a  liability  in 
existence,  the  performance  of  which  by  the  debtor  will  put  an 
end  to  liability  upon  the  special  promise,  the  special  promise 
amounts  to  a  promise  to  pay  the  debt  of  another,  and  must  be 
regarded  as  collateral  to  it.34  This  doctrine  has  been  distinctly 
repudiated  in  England  and  by  the  majority  of  the  courts  in  the 
United  States.  And  the  oral  promise  to  identify  a  person  for 
becoming  surety  on  another's  bail  bond,  according  to  the  minor- 

11  Mills  v.  Brown,  11  Iowa,  314:  Dunn  v.  West,  5  B.  Mon.  376;  Holmes 
v.  Knight,  10  N.  H.  175;  Vogel  v.  Melms,  31  Wis.  306;  Boyer  v.  Soules, 
105  Mich.  31;  Minick  v.  Huff,  41  Neb.  516. 

"Barth  v.  Graf,  101  Wis.  27;  Warren  v.  Abbott  (N.  J.),  46  At.  Rep. 
575 ;  Fidelity,  etc.,  Co.  v.  Lawlor,  64  Minn.  144. 

"Ressiter  v.  Waterman,  151  111.  169;  Braman  v.  Russell,  20  Vt.  205; 
Goetz  v.  Foos,  14  Minn.  265;  Aldrich  v.  Ames,  9  Gray,  76;  Smith  v.  Lay- 
wood,  5  Me.  504;  Hoggart  v.  Thomas,  35  La.  Ann.  298;  Yorkshire,  etc.,  Co. 
v.  Ma  dure,  19  Ch.  Div.  478;  Commercial  Fire  Ins.  Co.  v.  Morris,  105  Ala. 
498;  Guild  v.  Conrad  (1894),  2  Q.  B.  885;  Jones  v.  Bacon,  145  ST.  Y.  446; 
A.pgar  v.  Hiler,  58  N.  H.  523;  Anderson  v.  Spencer,  72  Ind.  315;  Mills  v. 
Brown,   11   Iowa,   314. 

'  May  v.  Williams,  61  Miss.  125;  Bissig  v.  Britton,  59  Mo.  204;  Hunt  v. 
Ford,  L42  Mo.  283;  Ferrell  v.  Maxwell,  28  Ohio  St.  383;  Simpson  v.  Nance, 
1  Spears  (S.  Car.),  4;  Maey  v.  Childress,  2  Tenn.  Ch.  438;  Nugent  v. 
Wolfe,  111  Pa.  St.  471;  Green  v.  Crosswell,  10  Ad.  &  E.  453. 


§  383)  THE  STATUTE  OF  FEAUDS.  285 

ity  of  the  courts,  is  within  the  statute  of  frauds,  and  must  be  in 
writing.35 

§  383.  Indemnity  Contracts  in  General. — So  in  some 
jurisdictions  the  promise,  to  come  within  the  statute  of  frauds, 
must  result  in  a  contract  of  suretyship ;  because  it  is  held  that 
the  obligation  arising  from  the  special  promise  should  be  purely 
a  collateral  one;  therefore  a  contract  of  indemnity  does  not  come 
within  the  statute  of  frauds,  and  need  not  be  in  writing. 

But  in  other  jurisdictions,  a  mere  contract  of  indemnity  is 
within  the  statute ;  because  it  is  argued  that  wherever  there  is  a 
liability  in  existence,  the  performance  of  which  by  the  debtor 
will  put  an  end  to  the  liability  upon  the  special  promise,  the 
specific  promise  amounts  to  a  promise  to.  pay  the  debt  of  another, 
and  must  be  regarded  as  collateral  to  it.  Therefore  the  statute 
of  frauds  applies  to  a  contract  of  indemnity.  Thus,  if  a  person 
signs  an  obligation  as  surety  upon  the  promise  of  indemnity  by 
one  not  bound  by  the  same  instrument,  the  promise  is  within  the 
statute,  as  being  a  promise  to  answer  for  the  default  of  the  prin- 
cipal upon  his  implied  liability  to  his  surety.  A  promise  to  in- 
demnify one  for  becoming  a  surety  of  another  must  be  in  writ- 
ing.36 But  an  exception  is  generally  recognized  where  the  in- 
demnitor is  himself  primarily  liable  for  the  debt  guaranteed.37 

But  other  courts  hold  that  a  promise  to  indemnify  one  for  be- 
coming a  surety  for  another  need  not  be  in  writing,  because  it  is 
an  original  undertaking.38     The  promise  is  held  not  to  be  within 

"May  v.  Williams,  61  Miss.  125,  where  the  authorities  are  reviewed. 
Green  r.  Croswell,  10  Ad.  &  El.  453.  Compare  Thomas  v.  Cook,  8  Barn.  & 
Cr.  728. 

"Brand  v.  Whelan,  18  111.  App.  186;  May  v.  Williams,  61  Miss.  125; 
Ferrel  v.  Maxwell,  28  Ohio  St.  383;  Bissig  v.  Britton.  50  Mo.  204;  Nugent 
v.  Wolfe,  111  Pa.  St.  471;  Green  v.  Crosswell,  10  Ad.  &  E.  453.  Compare 
Kessiter  v.  Waterman,  151  111.  169. 

"Brand  v.  Whelan,  18  111.  App.  186. 

38  Mills  v.  Brown,  11  Iowa,  314;  Anderson  v.  Spencer,  72  Ind.  315; 
Potter  v.  Brown,  35  Mich.  274 ;  Goetz  v.  Foos,  14  Minn.  265 ;  DeMerritt  v. 
Bickford,  53  N.  H.  523;  Apgar  v.  Hiler,  24  N.  J.  L.  812;  Sanders  v. 
Gillespie,   59  N.  Y.   250;   Tighe  v.  Morrison,   116   N.  Y.   263;    Braman  v. 


SURETYSHIP  AND  GUARANTY.  (Ch,  14 

the  statute,  because  it  is  not  to  be  made  to  the  creditor,  but  to 
one  who  is  debtor.39  Others  hold  the  oral  promise  to  be  enforce- 
able, because  the  implied  obligation  of  the  principal  to  indem- 
nify his  surety  arises  from  a  subsequent  fact,  that  is,  the  pay- 
ment of  the  debt  by  the  surety.40 

§  384.  What  is  a  Sufficient  Consideration. — The  consid- 
eration to  support  the  promise  to  pay  the  debt  of  another  is  the 
same  as  in  other  contracts,  and  when  sufficient  the  statute  of 
frauds  does  not  apply,  as  it  is  a  new  consideration.  There  is  a 
sufficient  consideration  to  support  an  agreement  to  answer  for 
the  debt  of  another,  when  the  creditor  is  induced  by  the  promisor 
to  relinquish  a  valid  lien  which  he  has  upon  property  to  secure 
a  debt.41  A  promise  to  pay  the  debt  of  another  arising  out  of 
some  new  consideration  or  benefit  to  the  promisor,  or  harm  to  the 
promisee  moving  to  the  promisor,  either  from  the  promisee  or 
the  origin al  debtor,  is  not  within  the  statute,  although  the  orig- 
inal debt  still  subsists  and  remains  unaffected  by  such  agree- 
ment.42 It  being  the  own  debt  of  the  promisor,  he  cannot  there- 
fore rely  upon  the  statute  of  frauds  as  being  a  promise  to  pay 
the  debt  of  another.43 

A  mere  verbal  promise  to  be  liable  for  costs  in  a  suit  is  void 

Russell,  20  Vt.  205;  Vogel  v.  Melms,  31  Wis.  30G;  Wilde  v.  Dudlow.  L.  E. 
19  Eq.  Cas.  198;  Cripps  v.  Hartnoll,  4  Best  &  S.  414;  Jones  v.  Shorter, 
1  Ga.  294;  Aldrich  v.  Ames,  9  Gray,  76;  Phelps  v.  Stone,  172  Mass.  355; 
Barth  v.  Graf,  101  Wis.  27;  Townsend  v.  White.  102  Iowa,  47. 

•ader  v.  Kingman,  13  C.  B.,  N.  S.  344:  Wilde  v.  Dudlow,  19  Eq.  198; 
Aldrico  v.  Ames,  9  Gray,  76;  Anderson  v.  Spence,  72  Ind.  315. 

«* Dunn  v.  West,  5  B.  Mon.  (Ky.)  376;  Lucas  v.  Chamberlain,  8  B.  Mom 
2't  See,  also,  Read  v.  Nash,  1  Wils.  305:  DeWolf  v.  Rebaud,  1  Pet. 
(U.  S.)  476;  Emerson  v.  Slater,  22  How.  (U.  S.)  28. 

41  Bluthenthal  v.  Moore,   106  Ga.  424. 

+1  Craft  v.  Kendriek,  39  Fla.  90:  Wilson  v.  Bevans,  58  111.  232:  Bunde  v. 
Runde,  59  111.  98;  Hirsrh  v.  Carpet  Co.,  82  111.  App.  234;  Putney  v.  Farn- 
ham,  27  Wis.  187;  Mallory  v.  Gillett,  21  N.  Y.  412:  Mills  v.  Brown,  11 
Iowa,  314;  Adams  v.  Huggins,  78  Mo.  App.  219;  Besshears  v.  Rowe, 
4fi  Mo.  501  ;  ClyriKT  v.  De  Young,  54  Pa.  St.  118:  Calkins  v.  Chandler,  38 
Mich.  320. 

"Stebbine  v.  Scott,   172  Mass.  355. 


§    385,  386)  THE    STATUTE    OF   FRAUDS.  287 

for  want  of  a  written  contract.44  But  if  the  sureties  execute  the 
obligation  for  costs  themselves,  and  the  consideration  was  the 
institution  of  a  suit,  it  will  bind  them.45 

§  3S5.  Novation. — In  every  novation  there  are  four  essen- 
tials :  A  previous  valid  contract  or  obligation,  an  agreement  of 
all  the  parties,  of  whom  there  must  be  at  least  three,  to  the  new 
contract,  the  extinguishment  of  the  old  debt,  and  a  valid  new 
one.  Unless  the  old  debt  is  extinguished  the  new  agreement  is 
without  consideration.  The  creation  of  the  new  obligation  and 
the  extinguishment  of  the  old  take  place  at  the  same  time,  and 
the  statute  of  frauds  does  not  apply.46  Where  the  original 
debtor  is  discharged  and  the  promisor  is  substituted  as  the 
debtor,  the  statute  has  no  application  to  such  transaction.47 

To  make  the  promise  collateral  and  bring  it  within  the  stat- 
ute, it  must  be  a  promise  to  answer  to  the  promisee  for  the  debt, 
default  or  miscarriage  of  a  third  person,  who  is  liable  to  the 
promisee  therefor  and  continues  so  liable.48  The  statute  never 
applies  to  contracts  of  novation,  which  must  always  be  proved.49 

§  386.  Promise  to  Pay  the  Debt  of  Another — Statute 
of  Frauds. — Collateral  contracts  to  pay  the  debt  of  another 
must  be  in  writing  to  be  valid.  Original  and  independent  con- 
tracts need  not  be  in  writing,  and  a  parol  agreement  then  is  suf- 
ficient. The  settled  rule  is  that  where  the  agreement  to  pay  the 
debt  of  another  is  original  and  independent,  it  is  not  within  the 
statute  of  frauds,  and  of  course  need  not  be  in  writing ;  and  the 
agreement  may  be  regarded  as  original,  although  it  directly  in- 

44  Billiard  v.  Johns,  50  Ala.  382. 

46  McDonald    v.    Wood,    118   Ala.    580. 

"  Murcrone  v.  Lumber  Co.,  55  Mich.  C>22 ;  Trndeau  v.  Poutre,  165  Mass. 
81;  Kelso  v.  Flaney,  104  Ind.  180:  Martin  v.  Curtis  (Mich.),  77  N.  W.  Rep. 
690;  Ryan  v.  Pistone,  89  Hun.  78;   157  N.  Y.  705. 

47  Hyatt  v.  Bonham.  19  Ind.  App.  256. 

48  Downey  v.  Hinchman,  25  Ind.  453;  Board  v.  Cincinnati,  etc.,  Co.,  128 
Ind.  240;  Hargraves  v.  Parson?,  13  Mees.  &  W.  560;  Hall  v.  Alfred  (Ky.), 
49  S.  W.  Rep.  444. 

49  Hamlin   v.    Drummond,    91   Me.    175. 


£88  SURETYSHIP  AND  GUARANTY.  (Ch.  14 

volves  the  interest  of  or  concerns  a  third  party,  or  may  relate  to 
an  act  or  the  performance  thereof,  by  one  not  a  party  to  the 
contract.50 

In  order  that  the  promise  shall  be  within  the  statute,  it  is 
essential  that  there  be  a  binding  and  subsisting  obligation  or 
liability  to  the  promisee  to  which  the  promise  is  collateral,  that 
is,  the  party  for  whom  the  promise  has  been  made  must  be  liable 
to  the  party  to  whom  it  is  made.51  And  the  liability  of  the 
person  for  whom  the  promise  is  made,  to  the  promisee,  must  be 
one  which  is  capable  of  enforcement.  Unless  it  appears  that 
some  person  other  than  the  promisor  has  incurred  an  actual  lia- 
bility with  respect  to  the  subject-matter  of  the  promise,  the 
agreement  is  not  within  the  statute,  although  the  third  person 
may  be  under  an  imperfect  or  merelv  moral  obligation  to  re- 
spond.52 

If  the  agreement  is  an  original  and  independent  one,  it  is  not 
within  the  statute;  but  if  it  be  collateral  to  the  agreement  of 
any  person  to  answer  for  the  debt  of  that  other  person,  it  is 
within  the  statute.53 

§  387.  Promise  to  the  Debtor  to  Pay  His  Debt. — Con- 
tracts between  the  debtor  and  another  party  to  take  the  debt  and 
pay  it  as  a  consideration  of  a  new  contract  between  them  is  not 
within  the  statute.  Thus,  where  the  promisor  agrees  to  pay  the 
debt  of  the  debtor  and  takes  property  of  the  latter  as  a  consider- 
ation, this  is  an  original  promise  not  within  the  statute.54  So 
a  promise  to  a  chattel  mortgagee  by  a  purchaser  of  the  mort- 
gagor's property,  to  pay  the  debtor'  obligation,  is  not  within  the 

50  Eddy  v.  Roberts,  17  111.  505;  Ressiter  v.  Waterman,  151  III.  169. 

61  Alger  v.  Sooville,  1  Gray,  391;  Tighe  v.  Morrison,  116  N.  Y.  263; 
Perkins  v.  Littlefield,  5  Allen,  370;  Pratt  v.  Humphrey,  22  Conn.  317; 
Eastwood  v.  Kenyon,  11  Ad.  &  E.  438;  Ressiter  v.  Waterman,  151  111.  169. 

K  Downey  v.  Hinchman,  25  Ind.  453;  Smith  v.  Mayo,  1  Allen,  160:  Tighe 
v.  Morrison,  116  N.  Y.  263;  Ressiter  v.  Waterman,  151  111.  169. 

"Spear  v.  Bank,  156  111.  555;  Perkins  v.  Littlefield,  5  Allen,  370;  H*r- 
greaves  v.  Parsons,  13  Mees.  &  W.  561. 

"Don  Yook  v.  Mill  Co.,  16  Wash.  450. 


§     388,  389)  THE    STATUTE    OF    FRAUDS.  289 

statute,  as  the  property  taken  is  a  sufficient  consideration.65  So 
taking  the  assets  of  a  partnership  and  agreeing  to  pay  its  debts 
is  an  original  obligation,  and  the  statute  does  not  apply.58  And 
the  promise  of  the  grantee  of  land  to  pay  the  incumbrance  on 
the  land  sold,  as  part  of  the  consideration,  is  not  within  the 
statute.57  In  all  such  transactions  where  the  promisor  receives 
a  consideration,  the  transaction  is  not  collateral,  but  original, 
and  need  not  be  reduced  to  writing. 

§  388.  To  Whom  Credit  is  Given. — Whether  a  contract 
comes  within  the  statute  of  frauds  depends  wholly  on  the  agree- 
ment. If  the  party  agrees  to  be  originally  bound,  the  contract 
need  not  be  in  writing ;  but  if  his  agreement  is  collateral  to  that 
of  the  principal  debtor,  it  is  that  of  a  surety  to  another,  and 
the  agreement  must  be  in  writing.  It  makes  no  difference  in 
such  cases  whether  the  promise  is  made  prior  to  the  passing  of 
the  consideration  or  afterwards.  If  it  is  made  before,  and  is  a 
part  of  the  original  contract  that  security  shall  be  given,  then 
the  original  consideration  for  the  contract  will  be  sufficient  to 
uphold  the  promise;  but  if  the  promise  is  made  after  the  orig- 
inal contract  has  been  fully  executed,  then  the  promise  must  be 
based  upon  a  new  consideration.  In  either  case  the  contract 
must  be  in  writing,  and  the  latter  must  have  a  new  considera- 
tion.58 

§  389.  Indorsing  and  Executing  Notes  for  Another. — 
An  agreement  to  execute  a  note  as  surety  for  another  is  a  prom- 
ise to  answer  for  his  debt,  and  must,  therefore,  be  in  writing.59 
So  an  agreement  by  a  third  party  to  draw  for  a  creditor  a  draft 

"Provonchee  v.  Piper   (N.  H.),  36  Atl.  Rep.  552. 

M  Shufeldt  v.  Smith,  139  Mo.  267. 

eT  Flint  v.  Land  Co.,  89  Me.  420. 

"Cahill  v.  Bigelow,  18  Pick.  369;  Rogers  v.  Kneeland,  13  Wend.  114; 
Glenn  v.  Lehnen,  54  Mo.  45 ;  Moshier  v.  Kitchell,  87  111.  18 ;  Lance  v. 
Pearce,  101  Ind.  595;  Langdon  v.  Richardson,  58  Iowa,  610;  Champion  v 
Doty,  31  Wis.  190;  Walker  v.  Hill,  119  Mass.  249. 

■  Dee  y.  Downs,  57  Iowa,  539 ;  Wills  v.  Shinn,  42  N.  J.  L.  138. 

19 


290  SURETYSHIP  AND  GUARANTY.  (Oil.  14 

for  his  debtor  for  the  amount  of  his  own  debt,  is  a  promise  to 
pay  the  debt  of  another,  and  must  be  in  writing.60 

§  390.  Assignment  of  Promissory  Notes. — The  statute  of 
frauds  in  relation  to  the  liability  of  an  assignor  of  a  promissory 
note,  is  not  applicable  to  eases  where  a  guaranty  accompanies 
the  assignment.61  The  assignor  owes  the  assignee,  and  that 
particular  mode  of  paying  him  is  adopted.  He  guarantees,  in 
substance,  his  own  debt.  Though  the  debt  of  a  third  person  be 
incidentally  guaranteed,  it  is  not  necessary  that  the  contract 
shall  be  in  writing.62  The  case  of  a  holder  of  a  third  person's 
note  assigning  it  for  value  with  a  guaranty,  is  in  effect  the  pay- 
ing his  own  debt;  though  he  incidentally  guarantees  the  debt 
of  a  third  person.     It  is  not  within  the  statute  of  frauds.63 

§  391.  Agreeing  to  Pay  Debt  of  Contractor. — In  many 
instances  a  contractor  fails  to  pay  his  workmen  or  for  material 
for  building,  and  the  laborers  and  material  men  continue  as 
before  on  the  promise  of  the  owner  of  the  building  that  he  will 
see  that  they  are  paid.  The  general'rule  in  such  cases  is  this: 
Where  the  leading  object  of  the  undertaking  is  to  promote  some 
objects  of  the  party's  own,  his  promise  to  pay  is  not  within  the 
statute,  although  its  effect  is  to  release  or  suspend  the  debt  of 
another.  Thus,  where  a  party  had  employed  a  contractor  to 
build  a  house,  who  fails  on  account  of  financial  inability  to  pay 
his  workmen  and  material  men,  and  the  person  who  is  benefited 
by  the  performance  of  the  contract,  in  order  to  make  the  per- 
formance possible,  promises  to  pay  for  the  labor  and  materials 
if  the  laborers  and  material  men  will  go  on,  such  a  promise  is 
to  answer  for  the  debt  of  another,  yet  it  is  not  a  contract  of 

••Chaplin  v.  Atkinson,  45  Ark.  G7;  Carville  v.  Crane,  5  Hill   (N.  Y.),  483. 

"Smith  v.  Finch,  2  Scam.    (111.)    321. 

w  Darst  v.  Bates,  95  111.  493. 

"'Wilson  v.  Hentges,  29  Minn.  102;  Cardell  v.  McNeil,  21  N.  Y.  336; 
Melone  v.  Keener,  44  Pa.  St.  107;  Barker  v.  Scudder,  56  Mo.  272;  Beaty  v. 
Grim,  18  Ind.  131;  Thomas  v.  Dodge,  8  Mich.  50:  Wyman  v.  Goodrich,  26 
Wis.  21.  Compare  Dows  v.  Sweet,  120  Mass.  322;  127  Mass.  364;  134 
Mass.   140;   llaruinger  v.  Newman,  83  lnd.   124. 


§    392)  THE    STATUTE    OF,  FRAUDS.  291 

surety,  and  need  not  be  in  writing.  Such  a  promise  is  original, 
and  not  within  the  statute.64  Because  the  leading  object  is  to 
promote  some  interest  of  his  own,  and  so  the  promise  is  not 
within  the  statute,  although  the  effect  is  to  release  or  suspend 
the  debt  of  another.65 

The  distinction  is  between  a  promise,  the  object  of  which  is 
to  promote  the  interest  of  another,  and  one  in  which  the  object  is 
to  promote  the  interest  of  the  party  making  the  promise.  The 
former  is  within  the  statute ;  the  latter  is  not  affected  by  it  But 
when  the  promisor  is  himself  to  receive  the  benefit  for  which 
the  promise  is  exchanged,  it  is  not  usually  material  whether  the 
original  debtor  remains  liable  or  not  ;66  this  is  the  general  rule, 
but  there  are  cases  which  hold  that  the  statute  applies  in  spite 
of  the  benefit  obtained,  if  the  original  liability  is  allowed  to 
remain.67 

§  392.  Relinquishment  of  a  Lien. — If  there  is  a  new  con- 
sideration moving  from  the  promisee  to  the  promisor,  then  the 
superadded  consideration  makes  a  new  agreement,  which  is  not 
within  the  statute  of  frauds.  Thus,  where  a  party  releases  a 
chattel  mortgage  upon  property,  and  allows  the  mortgagor  to 
sell  the  property,  in  consideration  that  his  debt  shall  be  paid 
when  the  money  is  received  from  the  property  thus  sold,  the 
oral  promise  to  pay  the  mortgagee  who,  of  course,  holds  the  note, 
subject  to  a  lien  for  a  debt  incurred  by  former  owner,  who  agrees 
to  pay  the  lien  to  the  holder  of  the  lien  forbearing  to  enforce 
the  same,  this  is  not  a  promise  to  pay  the  debt  of  another,  and 
is  not  within  the  statute. 6S  So  also  if  the  owner  of  a  vessel 
subject  to  a  lien  for  a  debt  incurred  by  the  former  owner,  agrees 
to  pay  the  lien,  on  the  holder  of  the  lien  forbearing  to  enforce  the 

"Nelson  v.  Boynton,  3  Met.  390;  Hall  v.  Alfred  (Ky.),  49  S.  W.  Rep.  444. 

85  Clifford  v.  Luhring,  69  111.  401;  Walker  v.  Hill,  119  Mass.  249;  Merri- 
man  v.  McManus,  102  Pa.  St.  102;  Kelly  v.  Schupp,  60  Wis.  76;  Crawford 
v.  Edison,  45  Ohio  St.  239;  Emerson  v.  Slater,  22  How.  43. 

86  Calkins  v.  Chandler,  36  Mich.  324;  Jefferson  v.  Slagle,  66  Pa.  St.  202. 
"Morrissey  v.  Kinsey,  16  Neb.  17;  Sext  v.  Geise,  80  Ga.  698;  Wilhelm  v. 

Voss   (Mich.),  76  N.  W.  Rep.  208. 

88  Powers  v.  Rankin,  114  111.  52;  Fears  v.  Story,  131  Mass.  47;  Bluthen- 
thal  v.  Moore    (Ga.),  32  S.  E.  Rep.  344. 


292  SURETYSHIP    AND    GUARANTY.  (Ch.  14: 

same,  this  is  not  a  promise  to  pay  the  debt  of  another  within 
the  statute  of  frauds.69  So  where  the  creditor  has,  in  considera- 
tion of  the  promise  of  a  third  person,  relinquished  some  lien  or 
advantage  for  securing  his  debt,  and  transfers  that  interest  or 
some  equivalent  thereof  to  the  third  party,  it  is  a  new  and  inde- 
pendent contract  between  the  parties,  although  the  result  is  that 
the  payment  of  the  debt  of  another  is  incidentally  or  indirectly 
affected.70 

But  the  weight  of  authority  is  that  if  there  is  no  other  con- 
sideration for  the  promise,  and  the  release  of  the  lien  upon  the 
property  was  not  beneficial  to  the  promisor,  such  promise  to  pay, 
unless  in  writing,  would  be  void  under  the  statute.71 

But  there  is  a  conflict  of  authority.  In  Wisconsin  it  has  been 
held,  which  seems  to  militate  against  some  prior  decisions,  that 
so  long  as  the  original  debt  remains  payable  by  the  debtor  to 
his  creditor,  any  arrangement  by  which  another  promises  to  pay 
that  debt  is  within  the  very  letter  of  the  statute,  no  matter  from 
what  source  the  consideration  of  the  latter  promise  is  derived.72 
In  ISTew  York,  when  the  primary  debt  subsists  and  was  ante- 
cedently contracted,  the  promise  to  pay  it  is  original  when  it  is 
founded  on  a  new  consideration  moving  to  the  promisor  or  bene- 
ficial to  him,  and  such  that  the  promisor  thereby  carries  under 
an  independent  duty  of  payment  irrespective  of  the  liability  of 
the  principal  debtor.73 

In  Massachusetts,  if  the  main  object  of  the  promisor  is  some 
benefit  to  himself,  while  the  benefit  to  the  debtor  is  only  inci- 
dental, the  promise  is  not  within  the  statute.74 

In  other  States  a  new  consideration  of  benefit  to  the  promisor 
is  enough  to  take  the  case  out  of  the  statute;75  and  the  purpose 
of  the  promisor   is  taken  into  consideration   in  some   of  the 

Tears  v.  Story,  131  Mass.  47. 

"Curtis  v.  Brown,  5  Cush.  488;  Furbish  v.  Goodman,  98  Mass.  296. 
"Young  v.  French,  15  Wis.  116;  Weisel  v.  Spence,  59  Wis.  301;  Mallory 
v.  Gillett,  21  N.  Y.  413. 

"Hooker   v.  Russell,  67   Wis.   257. 

"Rintoul  v.  White,  108  N.  Y.  222. 

u  Nelson  v.  Boynton,  3  Met.  396. 

™  Westmoreland  v.  Porter,  75  Ala.  452 ;  Chaplin  v.  Atkinson,  45  Ark.  67. 


§    393)  THE    STATUTE    OF   FRAUDS.  293 

States.76  And  some  decisions  call  the  special  attention  to  tho 
intent  of  tho  parties  as  the  test  of  the  agreement  of  the  promise, 
whether  original  or  not.77 

It  seems  that  the  intent  of  the  parties  and  the  various  cir- 
cumstances surrounding  the  transaction  and  the  character  of  the 
promise  should  form  satisfactory  evidence  of  the  real  inten- 
tion.78 

But  the  mere  forbearance  to  enforce  the  lien  is  not  sufficient 
to  take  the  case  out  of  the  statute;79  and  where  the  lien  is  not 
released  by  the  holder,  the  promise  must  be  in  writing.80 

§  393.  Promise  to  Perform  the  Obligation  of  Another 
Person. — Wherever  there  is  in  existence  an  obligation  on  the 
part  of  another,  a  promise  to  perform  that  obligation  if  he  does 
not,  is  not  within  the  statute  if  it  is  made  upon  a  new  considera- 
tion inuring  to  the  benefit  of  the  promisor,  although  the  former 
obligation  is  not  extinguished,  provided  the  chief  purpose  of  the 
promisor  is  to  obtain  a  benefit  for  himself.81 

But  where  the  former  obligation  is  not  extinguished,  or  where 
the  new  obligation  is  not  substituted  for  it  as  a  new  considera- 
tion, such  promise  is  within  the  statute,  and  must  be  in  writing 
to  be  enforceable.82 

Ta  Spann  v.  Cochran.  59  Tex.  640. 

"Clifford  v.  Luhring,  G9  111.  401;  Corkins  v.  Collins,  16  Mich.  478; 
Stratton  v.  Hill,  134  Mass.  27;  Fitzgerald  v.  Morrissey,  14  Neb.  193; 
Green  v.  Burton,  59  Vt.  423. 

78  Montstephen  v.  Lakeman,  L.  R.  5  Q.  B.  613. 

"Music  v.  Music,  7  Mo.  495;  Rintoul  v.  White.  108  N.  Y.  222;  Vaughn  v. 
Smith,  65  Iowa,  579 ;  Lang  v.  Henry,  54  N.  H.  57 ;  Stewart  v.  Campbell,  58 
Me.  459. 

80  Griffin  v.  Hoag,  105  Iowa,  499. 

"Powers  v.  Rankin,  114  111.  52;  Merriman  v.  McManus.  102  Pa.  St.  102; 
Crawford  v.  Edison,  45  Ohio  St.  239;  Railroad  Co.  v.  Houston.  85  Tenn. 
224;  Spann  v.  Cochran?  63  Tev-240;  Walker  v.  Hill,  119  Mass.  249;  Fitz- 
gerald v.  Morrissey,  14  Neb.  198. 

MSext  v.  Geise,  80  Ga.  698;  Palmer  v.  Blinn,  55  Ind.  11.  Compare 
Vaughn  v.  Smith,  65  Iowa,  579;  Studley  v.  Booth.  54  Mich.  6;  Haverly  v. 
Mercer,  78  Pa.  St.  257;  Hooker  v.  Russell,  67  Wis.  257;  Walker  v. 
Fleming,  103  Ind.   105. 


294  SURETYSHIP    AND    GUARANTY.  (Ch.  14 

§  394.  Del  Credere  Contracts. — Del  credere  is  a  contract 
where  the  agent  or  factor,  in  consideration  of  an  increase  of 
commission,  absolutely  engages  to  pay  to  his  principal  the  price 
of  the  goods  which  he  sells  for  his  consignor.83  It  is  in  the 
nature  of  a  contract  of  guaranty,  where  the  factor  or  broker 
guarantees  his  sales.  Such  an  undertaking  does  not  come  with- 
in the  statute  of  frauds ;  it  is  not  collateral,  but  an  original  con- 
tract, an  absolute  agreement  that  the  prices  for  which  the  goods 
are  sold,  or  the  debt  created  by  the  sale  of  the  goods,  shall  be 
paid  to  the  principal  when  the  credit  given  on  the  sale  shall 
have  expired.84 

The  liability  of  the  factor  is  original,  and  his  guaranty  need 
not  be  in  writing.85  The  del  credere  guaranty  is  an  original 
one  entered  into  in  performance  of  the  guarantor's  own  respon- 
sibility, and  in  no  sense  a  special  promise  to  pay  the  debt  of 
another  within  the  meaning  of  the  statute  of  frauds.86  The 
weight  of  authority  in  the  United  States  is  that  the  contract  is 
made  directly  with  the  principal,  to  pay  him  on  the  expiration 
of  the  term  of  credit,  whether  the  purchaser  be  solvent  or  not, 
and  is  an  original  undertaking  without  any  relation  to  the  debt 
or  liability  of  another.  The  law  allows  the  factor  to  sue  in  his 
own  name  for  the  debt;  and  the  principal  has  also  the  right  to 
sue,  but  not  the  exclusive  right.  But  this  does  not  convert  an 
express  original  undertaking  of  the  factor  with  his  principal 
absolutely  to  pay  a  debt  at  maturity,  into  a  collateral  and  con- 
ditional agreement  to  pay  the  debt  if  the  purchaser  does  not. 
The  guaranty  by  the  factor  differs  very  especially  from  a  prom- 
ise to  pay  the  debt  of  another  in  another  particular :     The  prin- 

M  National  Rubber  Co.  v.  Sims,  44  Neb.  148. 

M  Bradley  v.  Richardson,  23  Vt.  720;   2  Blatchf.  343. 

"Swan  v.   Nesmith,   7   Pick.  220. 

"Bullowa  v.  Orga,  57  N.  J.  Eq.  428;  Courturier  v.  Hastie,  8  Exch.  40; 
Wolff  v.  Koppel,  5  Hill  (N.  Y.),  458;  Osborne  v.  Baker,  34  Minn.  307; 
Seeman  v.  Inman,  6  Mo.  App.  384;  Wickham  v.  Wickham,  2  Kay  &  J.  478; 
Grover  v.  Dubois,  1  Term  R.  112;  Bize  v.  Dickanson,  1  Term  R.  285. 
English  cases  hold  a  contrary  view — Morris  v.  Cleasby,  4  Maule  & 
Sel.  566  j   Peele  v.  Northcote,  7  Taunt.  4<S. 


§    805)  THE   STATUTE   OF   FRAUDS.  295 

cipal  transfers  a  right  in  his  own  name  to  collect  the  debt  and 
hold  the  money,  accounting  only  for  the  net  proceeds.  But 
this  does  not  come  within  the  statute  of  frauds.87  Some  late 
English  cases  and  a  few  American  cases  hold  that  the  factor's 
liability  is  as  a  surety  merely,  and  his  contract  of  guaranty 
comes  within  the  statute.  But  the  great  weight  of  authority  in 
the  United  States  is  to  the  effect  that  one  who  sells  under  such  a 
commission  is  liable  absolutely  and  originally  to  his  principal, 
or  consignor,  and  the  contract  does  not  come  within  the  statute 
of  frauds.88 

§  395.  To  Whom  the  Promise  Must  Be  Made. — In  order 
that  the  promise  may  be  within  the  statute,  it  must  be  made  to 
the  creditor  under  either  rule.89  Hence,  a  promise  made  to  the 
debtor  to  pay  a  debt  which  he  owes  himself  to  a  third  person  is 
not  a  promise  to  answer  for  the  debt  of  another  within  the  mean- 
ing of  the  statute.90 

It  cannot  be  said  that  the  promise  to  indemnify  the  surety  is 
made  to  him  as  debtor  and  not  as  creditor.  The  surety  and 
principal  are  bound  to  the  creditor.  It  is  when  the  surety  has 
changed  his  relation  of  debtor  to  the  creditor  and  assumed  that 
of  creditor  to  his  principal,  by  paying  to  the  original  creditor 
the  debt  for  which  both  he  and  his  principal  were  bound,  that  a 
right  arises  to  go  against  the  guarantor  on  his  contract.  It  is  to 
the  surety  under  a  conditional  and  contingent  liability  that  the 
promise  is  made;  but  it  is  to  him  as  creditor  of  the  principal, 
and  not  as  debtor,  that  a  right  of  action  arises  on  it.  Nor  is  it 
sufficient  to  take  the  case  from  the  operation  of  the  statute  that 
the  liability  of  the  princpial  arises  by  implication  rather  than  by 

"Sherwood  v.  Stone,  14  N.  Y.  267. 

88  Balderstone  v.  Rubber  Co.,  18  R.  I.  338;  Lewis  v.  Brehme,  33  Md.  112. 
See,  also,  Mackenzie  v.  Scott,  6  Bro.  P.  C.  280;  Grove  v.  Dubois,  1  Term 
R.  112. 

*9AIdrich  v.  Ames,  9  Gray,  76;  Eastwood  v.  Kenyon,  11  Ad.  &  E.  438; 
Crim  v.  Fitch,  53  Ind.  214;  Lee  v.  Newman,  55  Miss.  365. 

"Ware  v.  West,  04  Miss.  545;  Windell  v.  Hudson,  102  Ind.  521;  Hoil  v. 
Bailey,  58  Wis.  434. 


296  SURETYSHIP  AND  GUARANTY.  (Ch.  14: 

express  contract.  This  is  the  doctrine  held  by  those  courts 
which  require  the  contract  of  indemnity  to  be  in  writing.91 

§  396.  Contract  fob  the  Benefit  of  the  Promisor. — 
In  some  States  the  rule  is  that  it  is  a  presumption  of  law,  that  if 
any  direct  benefit  to  the  promisor  is  the  object  sought  to  be  ob- 
tained by  his  promise,  he  must  be  understood  to  intend  an  orig- 
inal undertaking,  which  is  not  within  the  statute.92 

And  wherever  there  is  in  existence  an  obligation  on  the  part  of 
another,  a  promise  to  perform  that  obligation  if  he  does  not,  or 
to  guarantee  his  performance,  is  not  within  the  statute,  if  it  is 
made  upon  a  new  consideration  inuring  to  the  benefit  of  the 
promisor,  although  the  former  obligation  is  not  extinguished, 
provided  the  chief  purpose  of  the  promisor  is  to  obtain  benefit 
to  himself.93 

§  397.  Special  Promise — "When  Original  Debtor  is  Re- 
leased.— Where  the  original  debtor  is  entirely  released  and  the 
obligation  or  promise  of  another  is  substituted  in  the  place  of 
that  of  the  debtor,  who  is  discharged,  a  new  debt  is  thereby  cre- 
ated, binding  on  the  substituted  debtor,  which  is  not  affected  by 
the  provision  of  the  statute  of  frauds,  which  declares  that  every 
special  promise  to  answer  for  the  debt,  default  or  miscarriage  of 
another  is  void  unless  it  is  in  writing.94  Thus,  where  a  pur- 
chaser of  personal  property  agreed  verbally,  in  consideration 
of  the  purchase,  to  pay  certain  debts  of  his  vendor  due  to  a  third 

m  May  v.  Williams,  61  Miss.  125.  So  under  whichever  doctrine  the 
promise  is  made,  it  must  be  made  to  the  creditor. 

,:  Westmoreland  v.  Porter,  75  Ala.  452;  Chapline  v.  Atkinson,  45  Ark.  67; 
Lerch  v.  Gallup,  67  Gal.  595. 

"  Ressiter  v.  Waterman.  151  111.  1G0;  Clifford  v.  Luhring,  69  111.  401; 
Thornton  v.  Williams.  71  Ala.  555;  Fears  v.  Story,  131  Mas>.  47:  Fitzgerald 
v.  Morrisaey,  14  Neb.  198;  Merriam  v.  McManus,  102  Pa.  St.  102;  Dickson 
v.  Conde,  148  Ind.  270;  Lookout  Mount.  R.  R.  Co.  v.  Houston,  85  Tenn. 
224;    5  :ran.  63  Tex,  25" ;    Williamson  v.  Hill,  3  Maekay,  100; 

Bluthenthal  v.  Moore  (Ga.),  32  S.  E.  Rep.  344:  Craft  v.  Kendrick,  39 
Fla.  90. 

•♦Thornton  v.  Guice.  73  Ala.  321:  Howell  v.  Field,  70  Ga.  592. 


§  398,399)       THE  STATUTE  OF  FRAUDS.  207 

person,  the  promise  is  not  a  collateral,  but  an  original  promise, 
and,  hence,  not  within  the  statute.95 

And  when  the  promise  is  in  effect  to  pay  his  own  debt,  though 
that  of  a  third  person  he  incidently  guaranteed,  it  need  not  be 
in  writing.06 

§  398.  Sale  of  Goods — Liability  of  Third  Party. — A 
party  often  becomes  responsible  for  goods  sold  to  another,  and  if 
the  goods  are  supplied  entirely  on  the  credit  of  the  promisor,  so 
the  third  party  is  not  liable  at  all,  then  the  promise  to  pay  is  not 
within  the  statute ;  whenever  the  third  party  would  become 
liable  the  contract  must  be  in  writing.97  Where  a  third  party 
would  become  liable  for  the  property  so  sold  to  another,  it  is 
collateral,  and  the  fact  that  the  creditor  relied  chiefly  upon  the 
promise  will  make  no  difference.  If  the  credit  is  given  to  a 
third  person  instead  of  the  promisor,  then  it  is  within  the  stat- 
ute, if  such  is  the  contract  where  one  agrees  to  pay  the  debt  of 
another.98 

§  399.  Joint  Liability. — If  a  party  purchases  goods  to  be 
delivered  to  another,  or  promises  to  pay  for  goods  that  may  be 
purchased  and  received  by  a  third,  the  promise  is  clearly  an 
original  contract,  an  engagement  to  pay  his  own  debt,  and  not 
the  debt  of  another  party.      So  if  two  jointly  promise  to  pay  for 

K  Wilson  v.  Bevans.  58  111.  232;  Meyer  v.  Hartman,  72  111.  442:  Borch- 
senius  v.  Canutron,  100  111.  82;  Curtis  v.  Brown,  18  Pick.  467;  Malcrone  v. 
Lumber  Co.  55  Mich.  622;  Robbins  v.  Apgar,  10  Mo.  538;  Brown  v.  Kortz, 
37  Iowa.  230 ;  Booth  v.  Eighmie,  60  tf.  Y.  238 ;  Parker  v.  Heaton,  55  Ind.  1 ; 
Yale  v.  Edgerton,  14  Minn.  194;  Fairlie  v.  Denton,  8  B.  &.  C  395. 

*Darst  v.  Bates.  95  111.  493;  Mallory  v.  Gillett,  25  N".  Y.  412;  Smart  v. 
Smart,  97  N.  Y.  559:  Palmer  v.  Witcherly,15  Neb.  98;  Taylor  v.  Preston, 
79  Pa.  St.  436:  Catt  v.  Boat.  17'  Mass.  229. 

"Lance  v.  Pearce.  101  Ind.  595:  Walker  v.  Hill,  "1 19' Mass.  249';  Suther- 
land v.  Coster,  52  Mich.  151;  Grant  v.  Wolf.  34- Minn.  32;  West  v.  O'Hara, 
55   Wis.    645. 

98  Welch  v.  Marvin.  36  Mich.  59:  Badcliff  v.  Poundstone.  23  W.  Va.  724; 
Wills  v.  Ross,  77  Ind.  1;  Cahill  v.  Bigelow.  18  Pick.  369:  Bugbee  v.  Ken- 
drickson,  130  Mass.  437;  Chase  v.  Day,  17  Johns.  114;  Cole  v.  Hutchinson, 
34  Minn.  410;  Cowdin  v.  Cottgetren,  55  N.  Y.  650. 


298  SURETYSHIP  AND  GUARANTY.  (Ch.  14 

goods  delivered  to  a  second  party,  the  two  are  joint  original 
debtors.  It  is  a  joint  promise  to  pay  the  indebtedness  of  the 
two  and  not  a  promise  by  them  to  pay  the  debt  of  another.  Such 
a  promise  is  not  within  the  statute.  If  the  credit  is  given  to 
the  person  to  whom  the  goods  are  delivered,  the  promise  of  a 
third  person  to  pay  for  them,  though  made  at  the  same  time,  is 
a  promise  to  pay  the  debt  of  another,  and  is  within  the  statute." 
When  the  sale  of  goods  is  upon  joint  credit,  the  promise  of  two, 
though  the  property  is  purchased  for  and  delivered  to  but  one, 
the  legal  effect  as  between  them  and  the  vendor,  is  a  sale  to  the 
two  jointly.  Such  a  promise  is  an  original  one  as  between  them 
and  the  promisee,  and  it  is  not  within  the  statute.100 

§  400.  Oral  Contract  of  Insurance. — An  oral  executory 
contract  of  insurance  is  valid,  as  it  is  an  original  contract,  and 
the  statute  of  frauds  has  no  application.101  Such  contract  is 
not  made  to  answer  for  the  debt,  default  or  miscarriage  of  an- 
other, but  is  an  original  contract  between  the  insurance  com- 
pany, represented  generally  by  an  agent,  and  the  party  to  be 
insured.102 

§  401.  To  Answer  for  the  Torts  of  Another. — A  promise 
to  answer  for  the  torts  of  another  comes  within  the  statute  of 
frauds,  and  therefore  must  be  in  writing.  Thus,  where  a  party 
has  converted  the  goods  of  another,  an  oral  promise  to  answer  for 
such  tort  by  a  third  party  is  void.103  And  so  where  a  hirer  of 
a  horse  unlawfully  rides  it  to  death,  an  oral  promise  by  a  third 
party  to  pay  the  damages  to  the  owner  is  not  binding,  as  it  comes 
within  the  statute  of  frauds,  under  the  words  "miscarriage" 
and  "default."104 

"  Hetfield  v.  Down,  27  N.  J.  L.  440. 

100Storu'  v.  Walker,  13  Gray,  012:  Gibbs  v.  Blanchard,  12  Mich.  292; 
Boyro  v.  Murphy.  01  Ind.  1  :  Ttottman  v.  Fix.  25  Mo.  App.  571. 

•"  Croft  v.  Ins.  Co..  40  W.  Va.  508:  Ins.  Co.  v.  Colt.  20  Wall.  5C0. 

"•National  Fire  In?.  Co.  v.  Rawe   (Ky.).  40  S.  W.  Rep.  422. 

"•Turner  r.   Eubbell,  2   Day   (Conn.),  457. 

m  Kirkham  v.  Marter,  2  Barn.  &  Aid.  613,  distinguishing  Reed  v.  Nash, 
1   Wilson,  305. 


\) 


§  402-404)  bail.  299 


CHAPTER  XV. 

BAIL. 

§  402.  Bail  Defined. — Bail  as  a  noun  means  one  or  more 
sureties  themselves.  It  is  the  delivery  or  bailment  of  a  person 
to  his  sureties  upon  their  giving  a  bond,  the  defendant  being 
the  principal,  for  his  appearance,  he  being  supposed  to  continue 
in  their  friendly  custody,  instead  of  going  to  prison.1  As  a 
verb,  it  means  to  deliver  the  defendant  to  sureties  who  give 
security  for  his  appearance  in  court  at  the  return  of  the  writ2 

The  sureties  imdertake  to  surrender  the  defendant  when  he 
is  called  upon  to  answer  the  charge.3  Civil  bail  is  that  bail 
taken  in  civil  cases. 

§  403.  Distinction  Between  Bail  and  Mainpernors. — 
Bail  and  mainpernors  are  both  sureties  for  the  appearance  of 
their  principal.  Bail  may,  and  mainpernors  may  not,  surren- 
der their  principal.  Bail  are  only  sureties  that  the  party  be 
answerable  for  the  specific  matter  for  which  they  stipulate; 
mainpernors  are  bound  to  produce  him  to  answer  all  charges 
whatsoever.4     Bail  will  only  be  considered  in  this  connection. 

§  404.  Arrest  in  Civil  Action. — The  right  to  arrest  a  party 
in  a  civil  action  is  greatly  abridged  by  the  abolition  of  impris- 
onment for  debt.  Now  arrests  can  be  made  only  in  actions  ex 
delicto,  or  for  torts,  in  no  wise  connected  with  a  contract.5  A 
party  may  be  arrested  when  he  perpetrates  a  fraud  in  contract- 

'Bearden  v.  State,  89  Ala.  21;  Rinhard  v.  Calemby,  49  Ohio  St.  257; 
4  BI.  Com.  297;   Ramsey  v.  Coolbaujrh,   13  Iowa,   164. 

Ji>Bl.  Com.  290. 

'Ramsey  v.  Commonwealth,  S3  Ky.  534,  538. 

♦Whipple  v.  People,  40  111.  App.  301. 

•Bowen  v.  Burdick,  3  Clark  (Pa.),  227;  Donavan  v.  Cornell,  3  Day 
(Conn.),    339. 


300  SURETYSHIP  AND  GUARANTY.  (Ch.  15 

ing  an  indebtedness,  or  where  lie  fraudulently  conceals  Lis  prop- 
erty or  the  disposition  of  it  with  a  view  of  defrauding  his  credit- 
ors, and  when  he  is  about  to  abscond  with  the  purpose  of  cheat- 
ing his  creditors. 

Factors,  brokers  and  agents,  and  all  persons  in  a  fiduciary 
capacity  may  be  arrested  and  held  in  bail.  A  party  may  be 
arrested  vi  et  armisf  for  criminal  conversation;7  for  trover  and 
conversion;8  for  false  imprisonment  j9  for  deceit;10  for  malicious 
prosecution;11  for  libel  and  slander.12 

§  405.  Obligation  of  Bail. — The  obligation  of  bail  arises 
from  contract  and  the  law  jointly,  which  extend  his  privilege 
beyond  the  express  condition  of  the  bond.  The  statute  gener- 
ally subjects  the  bail  in  case  of  the  principal's  avoidance  and  a 
return  of  non  est  inventus  on  the  execution.  This  event  does 
not  take  place  on  the  omission  to  surrender  the  principal  in 
court,  nor  until  after  the  exercise  of  due  diligence  the  execution 
is  legally  returned.13  Either  the  refraining  from  surrendering 
of  the  principal  or  the  sureties'  promise  to  pay  the  execution  on 
which  the  principal  was  arrested,  is  a  consideration  for  the 
agreement  by  the  creditor  to  continue  the  matter  from  week  to 
week.14  The  bail  in  civil  cases  sustains  the  character  of  sure- 
ties in  the  same  manner  as  sureties  for  an  appeal.15  The  bail 
must  either  deliver  the  principal  at  the  time  designated  or  pay 
an  amount  not  exceeding  the  penalty,  with  costs  and  interest.16 

c  Davis  v.  Scott,  15  Abb.  Pr.  127. 

T  ]  yott  v.  Dean,   2   Chit.   72. 

*  Lotenan  v.  Henderson,  4  Pa.  St.  232;  Dugins  v.  Edwards,  17  How.  Pr. 

20O. 

•Cox  v.   Highley,    100   Pa.   St.   252. 

"Redfield  v.   Frear,   9  Abb.   Pr.,   N.   S.,   444. 

"Orton  v.  Noonan,  32  Wis.  220;   Dempsey  v.  Lipp.   15  How.   Pr.   11. 

"McCawley  v.  Smith,  4  Yeates  (Pa.),  193;  Life  Ins.  Co.  v.  Ecelesine,  6 
Abb.   Pr..   X.   B.,  23. 

"Hall    v.    White,   27    Conn.   488. 

"Thompson    v.   Way,    173   Mass.   423. 

"Culliford  v.  Wnlser,   158   N.  Y.   C>~->. 

"  New  Haven  Bank  v.  Miles,  5  Conn.  587.  Compare  Garibaldi  v.  Cag- 
r.oni,  6  Mod.  266. 


§  400,407)  bail.  301 

If  the  bond  is  not  executed  in  accordance  with  the  statute,  yet 
it  may  be  a  good  common-law  obligation  and  hold  the  parties 
to  their  agreement.17 

§  406.  Rights  of  Bail. — The  rights  of  bail  are  in  many 
respects  the  same  as  those  of  other  sureties.  Like  other  sure- 
ties they  are  discharged  by  change  in  the  contract  without  their 
consent.18  They  are  liable  for  their  principal  only,  and  not  for 
a  joint  defendant.19  The  bail  may  be  subrogated  to  the  cred- 
itors' rights  against  the  principal  in  civil  actions.20  Bail  is  not 
liable  for  their  principal's  failure.21  The  surety  has  .a  right  in 
civil  cases  of  indemnity  against  his  principal  ;22  but  he  cannot 
resort  to  any  person  who  was  jointly  liable  with  his  principal.23 
In  civil  proceedings  the  bail  is  entitled  upon  an  implied  contract 
to  indemnity  for  costs  incurred  incidental  to  his  position.24 

§  407.  Extent  of  Liability. — The  liability  of  the  sureties 
on  a  bail  bond  is  limited  by  the  penalty  of  the  bond  with  interest 
from  the  time  of  rum  est  inventus  is  made  on  the  execution.25 
At  common  law,  whether  by  bond  to  the  officer  in  the  first  in- 
tance  or  recognizance  in  the  court  above,  the  liability  of  the 
sureties  is  limited  by  the  penalty  named.  The  bail  bond  is  an 
agreement  to  deliver  up  the  principal  when  reasonably  de- 
manded to  satisfy  the  judgment  which  the  creditor  may  recover 

"  Beveridge  v.  Chatlain,  1  111.  App.  594;  Bell  v.  Pierce,  146  Mass.  58; 
Eobeson  v.  Thompson.  9  N.  J.  L.  97:  Haberstro  v.  Belford,  118  N.  Y.  187; 
Koons  v.  Seward,  8  Watts  (Pa.),  388;  Hadley  v.  Ewings,  4  Bibb  (Ky.), 
505 ;    Holmes  v.  Chadbourne,   4  Me.    10. 

"Bullen  v.  Dresser.  116  Mass.  267;  Campau  v.  Sedey,  30  Mich.  57; 
Dean  v.   Parker,    17   Mass.  591. 

"Jackson  v.  Hampton,  10  Ired.    (N.  C.)   L.  579. 

"Parsons  v.   Briddock,  2   Vern.  608. 

"Hinton  v.  Odenheimer,  4  Jones  Eq.   (N.  Car.)   406. 

"Adair  v.  Campbell,  4  Bibb   (Ky.),   13. 

"Cunningham  v.  Clarkson,  Wright  (Ohio),  217;  Bowman  v.  Blodgett, 
2  Met.   (Mass.)   308. 

"Fisher  v.  Fallows,  5  Esp.  171;  Green  v.  Creswell,  10  Ad.  &  El.  453. 

"  Heustis  v.  Rivers,  103  Mass.  398. 


302  SURETYSHIP  AND  GUARANTY.  (Ch.  15 

against  the  principal,  not  exceeding  the  penalty  of  the  bond.2* 
Of  course  the  interest  and  costs  must  be  included.27 

§  408.  Discharge  of  Principal  in  Bankruptcy  or  In- 
solvency.— The  discharge  of  the  principal  in  insolvency  or 
bankruptcy  is  a  bar  to  an  action  thereon  against  him  for  a 
breach  occurring  before  the  discharge,  but  it  does  not  release  the 
sureties  on  the  recognizance.28  But  the  surety,  after  paying 
the  liability,  may  recover  against  the  principal,  notwithstanding 
his  discharge,  when  the  debt  is  not  made  certain  until  the  prin- 
cipal's discharge.29 

The  fact  the  creditor  has  proved  his  claim  in  insolvency 
upon  judgment  against  the  debtor  is  no  bar  to  an  action  against 
a  surety  on  a  recognizance;30  though  the  bail  should  have  the 
benefit  of  any  dividends  declared.  The  discharge  of  the  prin- 
cipal releases  the  bail  without  surrender  of  the  principal  if 
obtained  before  the  bail  is  fixed.31  After  the  bail  has  been 
fixed,  and  the  right  to  surrender  the  principal  is  extinguished, 
his  discharge  will  not  release  the  sureties.32 

§  409.  Payment  by  Imprisonment  of  Principal. — In  some 
cases  the  principal  debtor  can  be  arrested  and  imprisoned  for 
the  debt  if  not  uaid.     At  law,  such  arrest  is  a  satisfaction  of  the 

M  New  Haven  Bank  v.  Miles,  5  Conn.  587. 

"Walker  v.  Waterman,  50  Vt.  107;  Richards  v.  Morse,  36  Me.  240; 
Kenan  v.  Carr,  10  Ala.  867.  Some  decisions  hold  that  the  bail  are  not 
liable  for  interest  on  the  judgment  recovered  against  the  principal.  Gray 
r.  Cook,  3  Houst.   (Del.)  49;  Bowyer  v.  Hewitt,  2  Gratt.   (Va.)   193. 

MDemelman  v.  Hunt,  168  Mass.  102. 

»Buel  v.  Gordon,  6  Johns.  126. 

"Harris  v.  Hayes,  171  Mass.  275. 

"Champion  v.  Noyes,  2  Mass.  481 :  Olcott  v.  Lilly,  4  Johns.  407;  Nettle- 
ton  v.  Billings,  17  N.  H.  453;  Clagett  v.  Ward,  5  Cranch,  C.  C.  669;  Ken- 
nedy v.  Adams,  5  Harr.  (Del.)  160;  Jones  v.  Ellis,  10  Ad.  &  El.  382;  Row- 
land v.  Stevenson,  6  N.  J.  L.  149;  Bogps  v.  Teackle,  5  Binn.  (Pa.)  332; 
Belknnp  v.  Davis,  21   Vt.  409. 

"Woolley  v.  Cobb,  1  Burr.  244;  Demolman  v.  Hunt.  168  Mass.  102; 
Franklin  v  Thurber,  1  Cow.  (N.  Y.)  427;  Munroe  v.  Towers,  2  Cranch, 
<      C.   187. 


§  410,411)  bail.  303 

judgment  so  long  as  the  imprisonment  continues,  and  during 
that  period  no  action  can  be  taken  by  the  judgment  creditor 
against  one  standing  as  surety  for  the  debt.  The  imprisonment 
suspends  the  lien  of  the  judgment  upon  the  principal's  property, 
and  the  creditor  meanwhile  can  bring  no  action  on  the  judgment 
for  its  payment.  If  the  judgment  cannot  be  enforced  against 
the  principal,  it  cannot  bo  enforced  against  the  surety.33 

§  410.  Different  Sets  of  Sureties. — As  between  different 
sets  of  sureties,  undertaking  to  secure  the  same  debt,  although  at 
different  stages  of  legal  proceedings,  the  primary  liability  rests 
upon  the  last  set.  So  bail  upon  discharge  from  an  order  of  ar- 
rest are  sureties  within  the  above  rule.34  The  latter  sureties 
are  primarily  liable  as  between  themselves  and  the  first  sureties; 
so  the  release  of  the  latter  set  by  the  creditor  discharges  the  first 
set,  because  it  deprives  them  of  a  remedy  over  to  which  they 
otherwise  would  have  been  entitled.35. 

§  411.  Exoneration  of  Bail. — The  bail  may  be  exonerated 
from  liability  in  many  ways.  Enlistment  of  the  principal  in 
the  military  of  the  government  and  going  out  of  the  State  re- 
leases the  bail,36  though  many  courts  hold  a  contrary  doctrine.37 
If  anything  happens  which  will  entitle  the  principal  to  an  imme- 
diate discharge  from  custody,  it  will  also  liberate  the  sureties 
from  liability.3S  If  judgment  is  rendered  in  favor  of  the  prin- 
cipal so  it  is  impossible  to  surrender  him,  the  bail  are  released,39 
even  if  the  judgment  is  reversed  for  error.40 

"Koenig  v.  Steckel,  58  N.  Y.  475. 

M  Toles  v.  Adee,  84  N.  Y.  222. 

"Culliford   v.   Walser,    158   N.   Y.   65. 

*>  McFarland  v.  Wilber,  35  Vt.   342. 

"Sayward  v.  Conant,  11  Mass.  146;  Grigrich  v.  People,  31  111.  448; 
Huggins  v.  People,  30  111.  443;  VVinninger  v.  State,  23  Ind.  228. 

"8  Shields  v.  Smith,  78  Ind.  425. 

89  Lockwood  v.  Jones,  7  Conn.  439. 

"Butler  v.  Bissel,  1  Root  (Conn.),  102;  Duncan  v.  Tindall,  20  Ohio 
|3t.  567. 


304:  SURETYSHIP    AND    GUARANTY.  {Cll.  15, 

Laches  may  discharge  the  bail;41  but  not  if  no  injury  is  done 
them.42  If  the  creditor  enters  into  a  valid  agreement  with  the 
principal  by  which  time  is  given  the  latter,  the  bail  is  released.43 
And  in  some  States  the  refusal  to  proceed  against  the  principal 
at  the  request  of  the  bail  releases  them.44 

After  the  suit  is  brought  an  amendment  in  the  cause  of  action 
discharges  the  sureties;  however,  if  the  amendment  does  not 
change  the  cause  of  action,  it  is  otherwise.45  So  by  adding  a 
new  cause  of  action  discharges  the  bail,46  unless  the  judgment  is 
rendered  on  the  original  cause  of  action.47  So  a  removal  of  the 
cause  of  action  releases  the  bail  ;48  so  if  the  case  is  submitted  to 
arbitration.49  Fraudulent  acts  of  the  creditor  will  release  the 
bail.50 

Imprisonment  of  principal  which  ends  before  judgment 
against  the  bail  will  not  discharge  them,51  nor  imprisonment 
which  does  not  prevent  surrender  of  the  principal.52  But  tak- 
ing the  principal  on  execution  releases  them.53 

§  412.  Exoneration  by  Performance  of  Condition. — By 
performance  of  the  condition  of  the  bond,  or  by  some  act  ex- 
cusing the  performance,  will  discharge  the  bail.  This  perform- 
ance may  be  by  paying  the  debt  or  by  surrender  of  the  princi- 
pal.54    When  the  performance  becomes  impossible  by  the  act  of 

41  Toles  v.  Adee,  84  N.  Y.  222. 

u  Vandergazelle  v.  Rodgers,  57  Mich.  132. 

"  Rathborne  v.  Warren,  10  Johns.  567. 

"Toles  v.  Adee,  84  N.  Y.  239. 

"Carrington  v.  Ford,  4  Cranch,  C.  C.  231;  Brown  v.  Howe,  3  Allen,  528. 

"  Hyer  v.  Smith,  3  Cranch,  C.  C.  437 ;  Willis  v.  Crooker,  1  Pick.  204. 

41  Seeley  v.  Brown,  14  Pick.  177. 

"Campau  v.  Seeley,  30  Mich.  57. 

"  Bean  v.  Parker,   17  Mass.  591. 

M  Stevens  v.  Bigelow,  12  Mass.  437 ;  Mott  v.  Hazen,  27  Vt.  208 ;  Bishop 
v.  Earl,  17  Wend.  316. 

51  Sedberry  v.  Conner,  77  N.  Car.  319. 

"  Steelman  v.  Mattiv,  38  N.  J.  L.  247. 

"  Milner  v.  Green,  2  Johns.  Cas.  283;  Warren  v.  Gilmer,  11  Cush.  15. 
Comparo  Stewart  v.  MoGuin,  1  Cow.    (N.  Y.)   99. 

"Appleby  v.  Robinson,  44  Barb.  316;  Chase  v.  Holton,  11  Vt.  347* 
Buggies  v.  Covey,  3  Conn.  419;  Chields  v.  Smith,  78  Ind.  425 


§  413)  bail.  305 

God,  or  of  law,  or  of  the  obligee,  the  bail  is  released,"5  and  also 
when  the  performance  becomes  useless.56 

The  death,  of  the  principal  at  any  stage  of  the  suit  before  the 
return,  of  the  writ  against  the  principal,  entitles  the  bail  to  a 
discharge.57  After  the  return  of  the  writ  and  the  bail  is  fixed, 
death,  does  not  discharge  them.58  But  death  of  the  principal 
within  any  time  fixed  by  the  statute  will  discharge  the  bail.5u 

§  413.  Bail  in  Criminal  Cases. — By  a  recognizance  of  bail 
in  a  criminal  action  the  principal  is,  in  theory  of  the  law,  com- 
mitted to  the  custody  of  the  sureties  as  jailers  of  his  own  choos- 
ing, not  that  he  is  subject  or  can  be  subjected  by  them  to  con- 
stant imprisonment,  but  that  he  is  so  far  supposed  in  their  power 
that  they  may  at  any  time  arrest  him  upon  the  recognizance  and 
surrender  him  to  the  court,  to  the  extent  necessary  to  accomplish 
this  may  restrain  him  of  his  liberty.60 

Although  the  rights  and  liability  of  sureties  on  a  recognizance 
are  in  many  respects  different  from  those  of  sureties  on  ordinary 
or  commercial  bonds,  yet  their  positions  are  similar  in  respect  to 
the  limitation  of  their  liability  to  the-  precise  terms  of  their 
contract  and  the  effect  upon  such  1  lability  of  any  change  in  these 
terms  without  their  consent.61 

The  relation  of  principal  and  surety  between  the  principal 
and  his  bail  exists  only  in  a  qualified  sense.  And  it  is  against 
public  policy  to  aid  the  bail  to  relieve  themselves  from  punish- 

»5  Taylor  v.  Taintor,  16  Wall.  360:  Nettleton  v.  Billing,  17  N.  H.  45S; 
Steelman  v.  Mattix,  38  N.  J.  L.  247 ;  Palmer  v.  Merriwether,  7  J.  J. 
Marsh.  506. 

06  Todd  v.  Maxfield,  3  Bar.  &  Cr.  222;  White  v.  Guest,  6  Blackf.  (Ind.) 
228;  Beers  v.  Haughton,  1  McLear  226;  Boggs  v.  Teackle,  5  Binn.  332; 
Shields  v.  Smith,  78  Ind.  425. 

"Griffin  v.  Moore,  2  Ga.  331. 

"Rawlings  v.  Gunstern,  6  Term  B.  284:  Davidson  v.  Taylor,  12  Wheat. 
604;  Hamilton  v.  Dunblee,  1  N.  H.  172:  Oleott  v.  Lilly.  4  Johns.  407. 

"Mount  Pleasant  Bank  v.  Pollock,  1  Ohio,  35:  Walsh  v.  Schulz,  13 
Daly.   132. 

80  State  v.  Sureties,  4  Wyo.  347;  Reese  v.  United  Sttates,  9  Wall.  13. 

u  State  v.  Sureties,  4  Wyo.  347. 

20 


306  SURETYSHIP    AND    GUABANTY.  (Ch.  15 

ment  meted  out  to  them  for  their  neglect  in  failing  to  surren- 
der their  principal  to  justice. G2  They  bind  themselves  that 
their  principal  shall  appear  and  answer  the  charge,  and  if  he 
fails  to  do  so,  the  condition  is  broken  and  they  become  liable  to 
the  penalty. 

Their  liability  is  limited  to  the  precise  terms  of  the  bond,  and 
if  any  change  is  made  in  the  contract  without  their  consent  they 
will  be  discharged,  though  it  inures  to  their  benefit63  And  if 
the  bail  is  illegally  taken,  the  sureties  are  not  bound.64 

The  object  of  bail  in  civil  cases  is  either  directly  or  indirectly 
to  secure  the  payment  of  a  debt  or  other  civil  duty;  while  the 
object  of  bail  in  criminal  cases  is  to  secure  the  appearance  of  the 
principal  before  the  court  for  the  purpose  of  public  justice. 

Payment  by  the  bail  in  a  civil  case  discharges  the  obligation  of 
the  principal  to  his  creditor,  and  is  only  required  to  the  extent 
of  that  obligation,  whatever  the  penalty  of  the  bond  or  recogniz- 
ance, whilst  payment  by  the  bail  of  their  recognizance  in  crim- 
inal cases,  though  it  discharges  the  bail,  does  not  discharge  the 
obligation  of  the  principal  to  appear  in  court;  that  obligation! 
still  remains,  and  the  principal  may,  at  any  time,  be  retaken  and 
brought  into  court. 

§  414.  Rights  and  Liability  of  Bail. — The  bail  becomes 
the  bailers  of  the  principal,  though  they  cannot  actually  confine 
him.  They  may  terminate  their  obligation  by  arresting  and  sur- 
rendering him  into  the  hands  of  the  court,65  without  process,6* 
by  their  agent  by  written  authority  when  not  in  their  presence,67 
and  pursue  him  into  another  S-  ate  and  arrest  him,68  within  the 
jurisdiction  of  the  United  States.69     They  may  arrest  him  on 

"United  States  v.  Ryder.   110  U.  S.  729. 
■Reese  v.   United  States,   9  Wall.   13. 

"  State  v.  Vion,  12  La.  Ann.  688 ;  Governor  v.  Fay.  S  La.  Ann.  490. 
"  Norfolk  v.  People,  43  111.  9:  Hughes, v.  State,  28  Tex.  App.  499_j  Taylor 
▼.  Taintor,  16  Wall.  371;    Nicolls  v.  Ingersoll.  7  Johns.  145. 

••Taylor  v.  Taintor,  16  Wall.  371;  State  v.  Lingerfelt,  109  N.  Car.  775. 
■  Taylor  v.  Taintor,  16  Wall.  366;  State  v.  Lazarre,  12  La.  Ann.  166. 
"Taylor  v.  Taintor.  16  Wall.  366;  State  v.  Lingenfelter,  109  N.  Car.  775. 
••Reese   v.    United    States,   9    Wall.    13. 


§   415)  BAIL.  307 

Sunday,70  and  break  into  his  house  if  necessary  to  make  the 
arrest,71  after  making  demand  to  enter  and  refusal  by  the  prin- 
cipal,72 and  may  require  the  assistance  of  an  officer;73  and  if  the 
State  does  not  aid  such  sureties  upon  proper  demand  to  arrest  the 
principal,  they  will  be  released.74 

If  the  bail  voluntarily  permit  their  principal  to  leave  the 
State  they  are  liable  for  his  appearance,75  even  if  the  principal 
is  a  minor  and  is  removed  by  his  mother  ;76  nor  will  insanity  of 
the  principal  release  them  from  their  obligation  to  produce 
him.77  Nothing  will  release  them  but  the  death  of  the  princi- 
pal or  act  of  God. 

However,  if  the  State  has  consented  to  the  principal's  placing 
himself  beyond  the  reach  of  the  sureties,  they  will  be  exonerated 
for  not  producing  him.78 

§  415.  Implied  Contract  of  Indemnity  to  Bail. — With- 
out an  express  contract  of  indemnity  to  bail  in  a  criminal  action 
for  the  appearance  of  his  principal,  the  bail  cannot  maintain  an 
action  against  the  principal  to  recover  any  sum  he  may  have 
been  obliged  to  pay  by  reason  of  forfeiture  of  the  principal ;  and 
so  he  is  not  entitled  to  be  subrogated  to  the  right  of  the  State 
and  to  enjoy  the  benefits  of  the  State's  priority,  as  such  subro- 
gation is  against  public  policy.79     But  an  implied  promise  to 

"  Taylor  v.   Taintoi,   10   Wall.   366. 

"Taylor  v.  Taintor,  16  Wall.  366;  Read  v.  Case,  4  Conn.  166. 

"Read  v.  Case,  4  Conn.  166. 

"State  v.  Cunningham,  10  La.  Ann.  393. 

74  Commonwealth  t.  Querly,  80  Ky.  208. 

n  State  v.  Horn,  70  Mo.  486 ;  State  v.  Scott,  20  Iowa,  63 ;  Hartington  v. 
Dennie,  13  Mass  92;  Taylor  v.  Taintor,  16  Wall.  366;  King  v.  State,  18 
Neb.  375;  Yarbrough  v.  Commonwealth,  89  Ky.  151;  Devine  v.  State,  5 
Sneed,  623. 

78  Starr  v.  Commonwealth,  7  Dana,  243. 

"Adler  v.  State,  35  Ark.  517. 

"Rathbone  v.  Warren,  10  Johns.  587;  Niblo  v.  Clark.  3  Wend.  24;  6 
Wend.  236;  Bowmaker  v.  Moore,  7  Price,  223:  3  Price,  214. 

"United  States  v.  Ryder,  110  U.  S.  729:  Cripps  v.  Hartnoll,  4  B.  &  S. 
414.  Compare  Reynolds  v.  Harral,  2  Strob.  (S.  Car.)  87;  Simpson  v. 
Roberts,  35   Ga.   180. 


308  SURETYSHIP  AND  GUARANTY'.  (Cll.  15 

indemnify  a  bail  in  criminal  cases  may  be  sustained  in  regard 
to  the  costs  which  the  bail  was  obliged  to  pay  on  default  of  the 
principal;  but  no  such  promise  will  be  implied  for  the  non- 
appearance of  the  principal,  because  it  would  be  against  public 
policy.80 

It  has  been  held  that  bail  will  not  be  taken  who  have  secured 
indemnity  from  the  principal,  as  the  sureties  would  be  relieve* i 
from  any  motive  to  exert  themselves  in  securing  the  appearance 
of  the  accused.81  But  this  doctrine  does  not  apply  to  contribu- 
tion among  sureties ;  so  when  one  of  the  sureties  is  compelled  to 
pay  the  penalty  he  can  have  contribution  against  his  co-surety.82 

§  416.  Express  Contract  of  Indemnity  to  Bail. — The 
law  will  not  enforce,  it  seems,  an  express  agreement  to  indem- 
nify bail  by  the  principal,  as  it  would  be  against  public  policy.83 
But  indemnity  for  costs  and  expense  incurred  by  the  surety  is 
valid,  and  not  against  public  policy.S4  But  indemnity  for  the 
amount  the  bail  must  pay  as  to  the  penalty  cannot  be  collected. 
And  so  where  the  principal  has  deposited  money  as  indemnity 
and  is  exonerated,  he  cannot  recover  it,  as  the  contract  was  illegal 
and  the  courts  will  not  interfere.85  However,  a  third  party  may 
indemnify  the  bail,  which  they  may  recover,  as  it  is  not  ar-. 
illegal  contract.86  And  such  contract  of  indemnity  by  a  third 
party  need  not  be  in  writing,  as  the  bail  is  not  given  for  the 
purpose  of  answering  for  the  debt  of  another  in  a  civil  action,  so 
the  statute  cannot  apply.87 

In  some  States  indemnity  to  bail  in  criminal  cases  is  allowed. 
Hence,  a  bond  and  mortgage  given  to  indemnify  the  bail  by  the 

"Jones  v.  Orchard,   16   C.  B.  614. 
n  United  States  v.  Simmons,  47  Fed.  Rep.  375. 
"Belond  v.  Guy,  20  Wash.   160. 
**  United  States  v.  Simmons,  47  Fed.  Rep.  375. 

"  Jones  v.  Orchard,  16  C.  B.  614;  Harp  v.  Osgood,  2  Hill   (N.  Y.),  216. 
M  Dunkin  v.  Hodge,  46  Ala.  ">2:>. ;  Herman  v.  J^euchner,  15  Q.  B.  Div.  561. 
"People  v.  Ingersoll,  14  Abb.  Tr.,  N.  S.,  23;  Stevens  v.  Hay,  61  111.  399; 
Harp  v.   Osgood,  2   Hill,  216. 

"Crippa  v.  Hartnoll,  4  B.  &  S.  414;  Anderson  v.  Spencer,  27  Ind.  3154 


I  417,418)  bail.  309 

principal  does  not  render  them  void.88  And  so  it  is  held  that  a 
bail  may  maintain  an  action  against  their  principal  for  money 
paid  to  indemnify  them  for  what  they  have  been  obliged  to  pay 
on  their  recognizance.89  There  can  be  no  valid  distinction,  in 
principle,  between  a  contract  made  by  the  accused  and  one  made 
by  somebody  else  for  his  benefit.  But  such  distinction  seems  to 
exist  in  the  text-books,  resulting  in  contracts  on  the  one  hand 
being  held  valid  and  on  the  other  hand  being  disproved.  In 
view  of  the  fact  that  contracts  for  the  indemnity  of  sureties 
upon  bail  bond  in  criminal  cases  have  been  frequently  enforced 
in  the  courts,  it  is  strong  evidence  that  they  have  been  presumed, 
by  the  bar  and  bench,  to  be  legal.90 

§  417.  Extent  of  Sureties'  Liability. — The  sureties  are 
only  liable  for  the  amount  mentioned  in  the  obligatory  part  of 
the  bond,  though  a  different  and  larger  amount  be  recited  in  the 
other  part  of  the  instrument.  Thus,  where  the  obligatory  part 
is  in  the  sum  of  $2,000  and  the  condition  recites  that  the  accused 
is  held  to  bail  in  the  sum  of  $2,500,  the  only  effect  is  that  the 
judgment  which  has  been  rendered  for  $2,500  be  reduced  to 
$2,000.91  So  where  the  principal  enters  into  a  recognizance  of 
$100,  and  the  sureties  are  bound  in  the  sum  of  $200,  they  can  be 
held  only  for  $100,  the  same  as  their  principal  92 

§  418.  Costs. — The  costs  follow  the  judgment  by  operation 
of  law,  and  constitute  a  distinct  liability  which  are  not  dis« 
charged  by  remission  of  the  forfeiture.93  So  when  a  party  is 
pardoned  for  a  crime  for  which  he  has  been  convicted,  this  does 
not  discharge  costs,  but  only  the  penalty.94 

MMaloney  v.  Nelson,  158  N.  Y.  351 ;  Simpson  v.  Robert,  35  Ga.  180. 

"Reynolds  v.  Harral,  2  Strob.  (S.  Car.)  87.  See,  also,  People  v.  Skid- 
more,   17   Cal.  260. 

"Maloney  v.  Nelson,  12  App.  Div.  545;  158  N.  Y.  351 

81  Hodges  v.  State.  20  Tex.  493. 

9,Teople  v.  Morrison,  75  Mich.  30. 

♦s  State  v.  Bebee,  87  Iowa,  636 ;  Chambless  v.  State,  20  Tex.  197:  Com- 
monwealth v.  Schick,  61  Pa.  St.  495;  Commonwealth  v.  Ramsey,  2  Duv. 
(Ky.)    385. 

"Holliday  v.  People,  5  Gil.  (111.)  214;  Ex  parte  McDonald,  2  Wheat.  440. 


310  SURETYSHIP  AXD  GUARANTY.  (Ch.  15 

£  119.  Joixt  a.\d  Several  Liabilities  of  Sureties. — In 
many  of  the  States  the  liability  of  the  sureties  is  fixed  by  statute 
as  to  the  nature  of  their  liability,  whether  joint  or  several.  The 
statute  generally  provides  that  the  liability  shall  be  joint  and 
several,  which  must  control  the  terms  of  the  bond.95  And  there 
is  generally  a  provision  authorizing  a  taking  of  forfeiture 
against  the  sureties,  or  one  or  more  of  them,  with  or  without 
their  principal.  In  the  absence  of  a  statute  controlling,  the 
liability  of  the  sureties  is  fixed  by  the  terms  of  the  bond,  and 
judgment  must  be  taken  accordingly.96 

§  420.  Effect  of  Pardox. — A  full  and  complete  pardon 
of  the  accused  at  a  time  subsequent  to  a  forfeiture  of  a  bail 
bond  does  not  release  the  sureties  from  liability  on  the  bond.97 
Because  the  pardon  does  not  reach  a  matter  wholly  independent 
of  the  criminal  offense  charged,  or  of  the  punishment  therefor 
after  forfeiture.98  The  pardon  relieves  the  accused  from  the 
penalty  and  nothing  more,  and  cannot  be  applied  so  as  to  relieve 
the  sureties  after  forfeiture.99 

And  where  a  fine  and  imprisonment  are  imposed,  a  suspen- 
sion of  the  imprisonment  by  the  governor  does  not  discharge  the 
fine,  and  the  sureties  are  still  liable.100 


See,  also.  United  States  v.  Lancaster.  4  Wash.  C.  C.  64:  Rowe  v.  State,  2 
Bay   (S.  Car.i.  565.     Compare  Cade  v.  Gordon.  88  Ga.  461. 

"Kilgrow  v.  State,  49  Ala.  337:  Avant  v.  State.  33  Tex.  Crim.  312: 
State  v.  Lyons,  7  La.  Ann.  540:  Swerdofeger  v.  Gordon,  88  Ga.  461. 

"People  v.  McFarland,  9  111.  App.  275:  Parrish  v.  State.  14  Md.  238; 
Fulton  v.  State.  14  Tex.  App.  32:  State  v.  Davidson.  20  Mo.  212:  I  hniael 
v.  State.  41  Tex.  244:  Tx i I  ireth  v.  State.  5  Blackf.  (Ind.)  80:  Ellison  v. 
State.  8  Ala.  273:  Madison  v.  State.  2  A.  K.  Marsh.  iKt.)  131;  People  v. 
Busrbee,  1  Idaho,  88:  Brewer  v.  State.  6  Lea.  198.  overruling  Scott  v. 
State.  1  Head,  433. 

"Dale  v.  Commonwealth.   101   Kr.  612. 

•"  Weathetwax  v.  State,  17  Kan.  427:  State  v.  Davidson,  20  Mo.  212. 

M  Mount  v.  Commonwealth,  2  Duv.   (Ky. )  95. 

""State  v.  Miller,  96  Iowa.  375;  Holliday  v.  People.  10  111.  214:  Estep  v. 
35  Iowa.  419:  State  v.  Farley.  8  Blackf.  (Ind.)  229;  Ex  pari*  Mc- 
Donald. 2  Whart.  140;  St  •<■•  v.  O'Blemis,  21  Mo.  272. 


§  421, 422)  bail.  311 

§  421.  Delivery  of  Principal  by  Bail  to  Proper  Offi- 
cer,— The  surrender  of  the  principal  by  the  bail  to  the  proper 
officer  releases  them  from  further  liability,101  and  they  have  the 
right  to  pursue  him  into  any  State  within  the  United  States  and 
arrest  him  for  the  purpose  of  surrender.  And  the  fact  that  the 
recognizance  has  been  forfeited,  and  a  conditional  judgment 
against  the  sureties  has  been  entered,  will  not  deprive  them  of 
their  rights  to  arrest  and  surrender  him.102 

The  surrender  should  generally  be  made  to  the  sheriff,  or  by 
a  certified  copy  of  the  bail  bond,  with  instructions  to  the  officer 
to  arrest  the  principal.103  And  a  surrendei  by  a  certified  copy 
of  the  bond  is  sufficient,  though  the  accused  is  in  prison  for 
another  crime.104  A  voluntary  surrender  of  the  principal  is 
sufficient  to  discharge  the  sureties,  if  his  knowledge  of  the 
accused  and  the  surrounding  circumstances  is  of  that  kind  which 
identifies  the  Darty  as  the  one  under  bail.105  And  so  if  the  prin- 
cipal appears  at  the  commencement  of  the  trial,  it  is  a  construct- 
ive surrender  of  him  to  the  ofiicei,  and  the  sureties'  liability 
ceases.100  P>ut  the  surrender  must  be  actual,  and  not  con- 
structive.107 

§  422.  Bail  on  Appeal.- — An  appeal  bond,  where  the 
sureties  bind  themselves  to  pay  the  fine  if  the  judgment  is 
affirmed,  cannot  be  satisfied  by  the  surrender  of  the  principal 
when  the  judgment  is   affirmed.     Nothing  but  payment  will 

101  State  v.  Murmann,  124  Mo.  502;  People  v.  MeReynolds,  102  Cal.  308; 
Norfolk  v.  People,  43  111.  9 ;  Taylor  v.  Taintor,  16  Wall.  366 ;  Bearden  v. 
State,  89  Ala.  21;  State  v.  Lingerfelt,  109  N  Car.  775;  State  v.  Rosseau, 
39  Tex.  (114:  Kellogg  v.  State,  43  Miss.  57. 

101  State  v.  Lingerfelt,  109  X.  Car.  77.5;  Bearden  v.  State,  89  Ala.  21. 

105  Slemberg  v.  State,  42  Ark.  127. 

104  State  v.  Trahan,  31  La.  Ann.  715. 

184  Walter  v.  People,  28  111.  App.  645 ;  Babb  v.  Oakley,  5  Cal.  94. 

m  Willis  v.  Commonwealtb,  85  Ky.  68;  Askins  v.  Commonwealth,  1  Dut. 
275,  overruling  Commonwealth  v.  Coleman,  2  Met.   (Ky.)   382. 

m  State  v.  McMichael,  50  La.  Ann   428. 


312  SURETYSHIP  AND  GUARANTY.  (Ch.  15 

release  the  sureties'  liability.103  But  where  there  is  no  such 
obligation  assumed  by  the  sureties,  the  sureties'  liability  will 
cease  with  the  conviction  of  the  principal.109 

§  423.  Appearance  op  Principal. — The  principal  must  ap- 
pear at  the  date  stipulated.  He  caunot  be  required  to  appear 
at  a  tim6  contrary  to  that  specified.  So  when  a  day  has  been 
fixed  for  his  appearance,  but  is  changed  by  act  of  the  legislature, 
and  he  appears  according  to  his  obligation,  this  is  a  sufficient 
compliance,  and  his  sureties  are  discharged.110  But  a  clerical 
mistake  as  to  the  date  of  the  month  named  in  the  recognizance  is 
immaterial,  as  he  must  take  notice  of  the  day  on  which  the  term 
of  court  commences,  will  not  discharge  him.111  If,  however, 
the  time  is  specified  as  the  next  term  of  court,  and  the  time  is 
changed  by  the  legislature,  this  does  not  affect  his  liability,  and 
he  must  appear  at  the  next  term  of  court.112  But  the  princi- 
pal is  not  required  to  appear  at  a  special  term  which  intervenes 
before  the  regular  term.113 

The  bond  is  generally  so  made  out  as  to  require  the  principal 
to  appear  from  day  to  day,  which  he  must  do,  in  order  not  to 
forfeit  his  bond  ;114  and  also  from  term  to  term.115  Where  the 
only  condition  is  that  the  accused  shall  appear  on  a  day  certain, 
and  nothing  further  is  required,  an  appearance  on  that  day  ful- 

108  State  v.  Stommel,  89  Iowa,  67;  State  v.  Meier,  96  Iowa,  375. 
108  Mitchell  v.  Commonwealth,  12  Bush,  247;  State  v.  Schexneider,  45  La. 
Ann.  1445. 

110  State  v.  Stephens.  2    Swan   (Tenn.),  308. 
mMooney  v.  People,  81  111.  134. 

111  Walker  v.  State,  6  Ala.  350. 

UJ  State  v.  Aubrey,  43  La.  Ann.  188 ;  State  v.  Houston.  74  N.  Car.  174. 

"♦Allen  v.  Commonwealth,  90  Va.  356;  Rubush  v.  State,  112  Ind.  107; 
Stokes  v  People,  63  111.  489;  Peiple  v.  Millham,  100  N.  Y.  273;  People  v. 
Gordon,  39  Mich.  259. 

m  State  v.  Baldwin,  78  Iowa,  737;  Glasgow  v.  State,  41  Kan.  333;  Chase 
V.  People,  2  Colo.  528;  Gallagher  v.  People,  91  111.  590;  State  v.  Whitson,  8 
Blackf.  (Ind.)   178;  Williams  v.  State,  55  Ala.  71. 


§  424)  bail.  313 

fills  that  condition,  and  if  the  court  adjourns  without  further 
orders,  the  principal  is  discharged,  and,  of  course,  his  bail 
also.116 

If  a  change  of  venue  is  legally  granted,  the  liability  of  the 
sureties  follows  the  suit.117  But  when  the  change  of  venue  is 
illegally  granted  it  is  a  nullity,  and  the  sureties  are  not  liable 
for  the  non-appearance  of  the  principal  to  the  appellate  court115 
A  mere  granting  an  order  of  change  of  venue  with  consent  of 
the  parties,  without  further  proceedings  to  complete  the  change, 
and  which  is  set  aside  at  the  same  term  of  court,  does  not  re- 
lease the  sureties,  although  a  change  of  venue  perfected  would 
release  them  under  the  statute.119 

§  424.  Re-aebesting  Principal  on  the  Same  Charge. — 
The  sureties  on  a  bail  bond  are  released  by  the  re-arrest  of  the 
accused  on  the  same  charge.120  By  such  second  arrest  the  prin- 
cipal is  placed  in  the  control  of  the  officer  of  the  law  precisely 
as  he  would  be  if  the  bail  should  surrender  him;  there- 
fore, they  are  discharged  from  further  liability.121  But  if  the 
accused  does  not  appear,  and  is  not  delivered  by  his  sureties,  then 
the  court  may  arrest  him,  and  if  he  escapes,  after  forfeiture  of 
the  bond,  the  sureties  will  be  liable.122 

When  the  sureties  surrender  the  principal  to  the  court,  then 
their  liability  ceases,  and  they  are  not  responsible  for  the  acts  of 
the  officer  of  the  court.  Their  legal  right  to  control  him  is  gone, 
and  they  cannot  be  held  to  produce  him.123 

"•Ogden  v.  People,  62  111.  63;  State  v.  Becker,  80  Wis.  313;  State  v. 
Mackey,  55  Mo.  51 ;  Swank  v.  State,  3  Ohio  St.  429. 

5,11  Commonwealth  v.  Austin,  11  Gray,  330;  Williams  v.  McDaniel,  77  Ga. 
4;  State  v.  Brown,  16  Iowa,  314. 

118  Adams  v.  People,  12  111.  Apn.  3S0. 

u»  Gray  v.  Commonwealth,  100  Ky.  645. 

120Medlin  v.  Commonwealth,  11  Bush,  605;  Commonwealth  v.  Bronson.  14 
B.  Mon.  361;  State  v.  Ossler,  48  Iowa.  343;  People  v.  Stager,  10  Wend.  431  : 
Smith  v.  Kitchens,  51  Ga.  158;  State  v.  Jones,  29  Ark.  127. 

m  State  v.  Holmes,  23  Iowa,  458 ;  Commonwealth  v  Coleman,  2  Met. 
(Ky.)   322;  People  v.  Stager,  10  Wend.  431. 

Mi  Commonwealth  v.  Brand,  1  Bush.  59. 

"*  Wilson  v.  People,  10  111.  App.  357:  People  v.  McReynolds,  102  Cal. 
308;  People  v.  Stager,  10  Wend.  431;  Whaler  v.  State,  39  Kan.  163. 


314  T  SURETYSHIP  AND  GUARANTY.  (Ch.  15 

It  is  held  by  some  courts  that  an  illegal  arrest  of  the  principal 
releases  the  sureties  because  they  are  compelled  to  submit  to  the 
proceedings  of  the  court  and  are  deprived  of  the  custody  of  the 
principal.124  But  other  courts  hold  that  an  illegal  arrest  does 
not  release  the  sureties,  because  such  second  arrest  is  a  nullity. 125 

The  arrest  of  the  principal  on  the  same  charge  by  the  Federal 
authorities  operates  to  discharge  the  sureties  on  the  State  bond.12' 

§  425.  Giving  a  New  Bond. — Where  the  principal  appears 
in  compliance  with  his  recognizance  and  gives  a  new  bail  bond, 
his  former  sureties  are  no  longer  liable.127  And  so  the  sureties 
before  forfeiture  are  released  from  liability  by  a  second  arrest 
and  a  new  bond  given  on  the  same  indictment.128  And  they 
cannot  thereafter  be  held,  although  the  second  bond  is  invalid 
and  is  set  aside.129  But  where  the  principal  escapes  after  for- 
feiture and  is  arrested  and  gives  a  new  bond,  this  does  not 
release  the  former  securities.130 

§  426.  Arresting  Principal  on  Different  Charge. — 
When  the  principal  is  arrested  on  a  different  charge  and  held 
in  custody,  which  makes  it  impossible  for  the  first  sureties  to 
produce  him,  this  operates  to  discharge  them.131  But  the  mere 
temporary  detention,  as  taking  time  to  give  a  bond  on  another 
charge  will  not  release  them.132  Thus,  if  he  be  arrested  on 
another  charge  and  fined,  stopping  to  pay  the  penalty  is  not  a 

m  Commonwealth  v.  Bronson,  14  Mon.  361 ;  Mecllin  v.  Commonwealth, 
11  Bush,  605. 

w  Ingram  v.  State,  27  Ala.  17 ;  Chapell  v.  State.  30  Tex.  613.^ 

m  Commonwealth  v.  Oveerby,  80  Ivy.  208;  Commonwealth  v.  Webster, 
1  Bush,  616;  Belding  v.  State,  25  Ark.  315. 

"'Schneider  v.  Commonwealth,  3  Met.  (Ky.)  409. 

'"Peacock  v.  State,  44JEss-~U • 

'"I'eacork  v.  Sta*p    44  Tpv    1 1 - 

m  State  v.  Martin  (La.),  24  South.  Rep.  590;  Reed  v.  Police  Court,  172 
Mass.  427. 

"'State  v.  Spear,  54  Vt.  503;  People  v.  Bartlett.  3  Hill  (N.  Y.),  570; 
People  v.  Robb,  98  Mich.  397;  Caldwell  v.  Commonwealth,  14  Gratt, 
(Va.)    698. 

,u  West  v.  Colquitt,  71  Ga.  559;   Bartley  v.  Colquitt,  72  Ga.  351.  . 


§  427)  bail.  315 

sufficient  detention  to  release  the  bail.133  The  sureties  are  not 
discharged  if  he  escapes  from  the  second  arrest,  for  he  is  then 
not  detained  by  the  law,  but  can  be  arrested  and  delivered  to  the 
court.134 

The  liability  of  the  sureties  is  not  affected  by  the  arrest  and 
detention  of  their  principal  in  another  county,  because  they  can 
secure  him  on  a  habeas  corpus  and  deliver  him  to  the  proper 
officer,135  unless  he  has  been  removed  from  the  county  by  order 
of  the  provost  marshal ;  this  action  of  a  Federal  officer  releases 
them.136  And  the  same  result  will  follow  if  arrested  by  mili- 
tary authority  and  detained  as  a  soldier.137  And  so  where  the 
principal  is  arrested,  tried,  convicted  and  imprisoned,  render- 
ing it  impossible  to  produce  him,  the  sureties  are  released.138 

§    427.     SURETIES    ARE    RELEASED    BY    A    CHANGE    OF    THEIR 

Obligations. — The  rights  and  liabilities  of  bail  are  in  many 
respects  different  from  those  of  sureties  on  ordinary  civil  bonds, 
yet  their  position  is  similar  in  respect  to  the  limitation  of  their 
liability  to  the  precise  terms  of  the  contract  and  the  effect  upon 
such  liability  by  any  change  in  these  terms  without  their  con- 
sent. So  if  the  State  makes  any  contract  with  the  principal, 
either  beneficial  or  detrimental  to  the  sureties,  without  their 
consent,  it  operates  to  release  them.  Thus,  where  the  State  al- 
lows him  to  be  extradited,  his  sureties  are  set  free  from  liabil- 
ity.139 And  where  the  condition  of  the  recognizance  provides 
for  the  appearance  of  the  principal  at  the  next  regular  term 
and  at  any  subsequent  term,  an  agreement  l>etween  him  and  the 
State,  superseding  this  condition  without  the  sureties'  consent, 

"'People  v.  Robb,  98  Mich.  397. 

1M  Wheeler  v.  State,  3S  Tex.  173;  Bishop  v.  State,  16  Ohio  St.  419. 

m  State  v.  Merrihew,  47  Iowa,  112;  Havis  v.  State,  62  Ark.  500;  Brown 
v.  People,  26  111.  28:  Mix  v.  People,  26  111.  32;  Wheeler  y.  Stater  38  Tgx. 
173;  Ingram  v.  State,  27  Ala.  17. 

1M  Commonwealth  v.  Webster,  1  Bush,  616. 

"TBelding  v.  State,  25  Ark.  315. 

1M  Caldwell  v.  Commonwealth,  14  Gratt.  698;  People  v.  Bartlett,  3  Hill 
(N.  Y.),  570. 

"» Reese  v.  United  States,  9  Wall.  13. 


316  SURETYSHIP  AND  GUARANTY.  (Ch.  15 

will  discharge  them.140  But  the  fact  that  the  indictment  found 
against  the  principal  and  properly  presented  in  open  court  at 
one  term,  hut  not  entered  upon  the  docket  until  the  succeeding 
term,  is  not  a  cause  for  discharging  the  bail,  because  the  prin- 
cipal's right  was  not  affected  in  any  way  by  the  non-entry  of  the 
case  upon  the  docket  at  the  first  term.141 

§  428.  Exoneration  of  Bail  by  Act  of  God. — The  sureties 
are  exonerated  from  liability  where  the  performance  of  the  con* 
dition  is  rendered  impossible  by  the  act  of  God.142  Thus,  where 
the  principal  is  too  sick  to  appear  it  will  exonerate  the  sure- 
ties.143 But  it  is  held  on  the  contrary  that  the  principal  being 
sick  in  another  county  did  not  exonerate  them  from  producing 
him  in  court.144  If  the  money  has  been  paid  by  the  surety  after 
forfeiture,  he  is  not  entitled  to  its  recovery  upon  the  death  of  the 
principal.145  As  a  general  rule,  if  failure  of  the  principal  to 
appear  is  caused  by  the  act  of  God,  he  will  be  excused.146 

§  429.  Exoneration  by  Act  of  Law. — The  sureties  are  also 
relieved  of  liability  by  act  of  law.  Thus,  if.  the  principal  is 
arrested  in  the  State  where  the  obligation  is  given,  and  sent  out 
of  the  State  upon  extradition,  such  act  will  release  the  sure- 

140  United  States  v.  Backland,  33  Fed.  Rep.  156.  See,  also,  Swank  v. 
State,  3  Ohio  St.  433;  Keefhauer  v.  Lowe,  2  Pa.  St.  241;  State  v.  Babb,  39 
Mo.  App.  543.     Compare  State  v.  Haskitt,  Riley   (S.  Car.),  97. 

141  State  v.  Spear,  54  Vt.  503 ;  King  v.  Clark,  5  B.  &  A.  728. 

10  Taylor  v.  Taintor,  16  Wall.  366;  People  v.  Bartlett,  3  Hill  (X.  Y.), 
370;  Co.  Litt.  306a;  People  v.  Manning,  8  Cow.  (N.  Y.)  297;  Piercy  v. 
People,  10  111.  App.  219;  State  v.  Traphager,  45  N.  J.  L.  134;  Pynes  v. 
State,  45  Ala.  52. 

141  State  v.  Tubbs,  37  N.  Y.  586.  Compare  Piercy  v.  People,  10  111.  App. 
219;   State  v.  Edwards,  4  Humph.  226. 

144  Piercy  v.  People,   10  111.  App.  219. 

145  People  v.  Rich,  36  App.  Div.   (N.  Y.)   60. 

"•  Payne  v.  State,  45  Ala.  52;  Caldwell  v.  Commonwealth,  14  Gratt.  698; 
State  v.  Edwards,  4  Humph.  226;  Scully  v.  Kirkpatrick,  79  Pa.  St.  324; 
People  v.  Tubbs,  37  N.  Y.  586;  State  v.  McNeal,  18  N.  J.  L.  333;  Way  v. 
Wrif/ht,  5  Mot.  380;  McClelland  v.  Chambers,  1  Bibb  (Ky.),  366;  State  v. 
Scott,  20  Iowa.  63;  State  v.  Cone,  32  Ga.  663;  Chase  v.  People,  2  Colo.  481; 
Parker  v.  Bidwell.  3  Conn.  84. 


§  430,431)  bail.  317 

ties.147  But  where  the  bail  permit  their  principal  to  go  into 
another  State  of  his  own  volition,  where  ne  is  arrested  for  an- 
other crime,  this  does  not  operate  to  release  the  sureties,  because 
they  had  the  friendly  custody  of  the  principal,  and  it  was  their 
neglect  that  allowed  his  departure  from  the  State  where  the 
obligation  was  executed  ;14S  and  even  if  he  is  imprisoned  in  the 
other  State,  this  does  not  release  the  home  sureties.149 

§  430.  Exoneration  by  Act  of  Obligee. — The  act  of  the 
obligee,  or  State,  may  also  discharge  the  surety.150  Thus, 
where  the  governor  of  the  State  recognizes  a  requisition  from 
another  State  and  delivers  the  principal,  who  is  taken  out  of  the 
State,  this  operates  to  release  the  bail.151  So  where  the  State 
and  principal  make  a  separate  contract  unknown  to  the  sureties, 
varying  their  liability,  it  releases  them.152  So  where  the  State 
enacts  that  all  prior  recognizances  shall  be  void,  and  directs  the 
court  in  which  they  are  pending  to  dismiss  them,  the  sureties 
are  discharged;153  and  so  where  the  court  before  which  the 
principal  is  to  appear  is  abolished  without  qualifications.154 

§  431.  Exoneration  of  Sureties  in  General. — The  dis- 

147  State  v.  Allen,  2  Humph.  258;  Devine  v.  State.  5  Sneed  (Tenn.),  626; 
State  v.  Adams,  3  Head  (Tenn.),  260;  Taylor  v.  Taintor,  16  Wall.  366, 
369 ;  Cain  v.  State,  55  Ala.  170. 

""Withrow  v.  Commonwealth,  1  Bush,  17;  Yarbrough  v.  Commonwealth, 
89  Ky.  151;  State  v.  Horn,  70  Mo.  466;  Taintor  v.  Taylor,  36  Conn.  242. 

"'State  v.  Seott,  20  Iowa,  63;  Hartington  v.  Dennie,  13  Mass.  92;  King 
v.  State,  18  Neb.  375 ;  United  States  v.  Van  Fossen,  1  Dill.  406 ;  Devine  v. 
State,  5  Sneed,  623. 

150  Taylor  v.  Taintor,  16  Wall,  366,  369;  State  v.  Allen,  2  Humph.  258; 
Steelman  v.  Mattex,  38  N.  J.  L.  247;  State  v.  Adams,  3  Head,  260;  Buffing- 
ham  v.  Smith,  58  Ga.  341. 

151  Taylor  v.  Taintor,  16  Wall.  366. 

1M  Reese  v.  United  States,  9  Wall.  13;  United  States  v.  Baekland,  33  Fed. 
Rep.  156. 

aM  Doniphan  v.  State,  50  Miss.  54. 

194  Taylor  v.  Taintor,  16  Wall.  366,  369.  See,  also,  State  v.  Berry,  34 
Ga.  546. 


318  SDKE'iViniP    AND    GUARANTY.  (Ch.  15 

charge  of  the  principal  is  also  a  discharge  of  the  bail.155  So  if 
the  principal  is  taken  from  the  custody  of  the  bail  by  the  mili- 
tary, the  bail  are  released.156  But  if  he  voluntarily  enlists  this 
does  not  discharge  the  principal,  as  held  by  the  weight  of  author- 
ity,157 though  there  are  other  decisions  to  the  contrary.158 

The  State  may  also  remit  the  penalty,  and  thereby  discharge 
the  sureties.159  The  conviction  of  the  principal  operates  as  an 
exoneretur  of  the  bail  without  formal  entry  to  that  effect,100  un- 
less the  bond  provides  that  the  principal  shall  abide  the  judg- 
ment of  the  court.161  If  the  principal  is  arrested  after  convic- 
tion, the  bail  are  discharged.152  And  the  postponement  of  the 
trial  without  the  knowledge  or  consent  of  the  sureties  renders 
the  recognizance  void.16'  Quashing  the  indictment  or  entering 
a  nolle  prosequi  does  not  discharge  the  bail,  and  if  another  in- 
dictment is  found,  they  must  produce  the  principal,  when  the 
recognizance  provides  that  the  principal  shall  not  depart  the 
court  without  leave.164  The  nolle  of  a  criminal  proceeding  in  a 
certain  form,  leaving  a  potentiality  of  its  future  prosecution 
in  a  different  method,  does  not  ipso  facto  discharge  the  principal 
or  sureties  from  the  obligation  of  the  recognizance  and  bond;165 
that  is,  the  second  indictment  includes  the  offense  described  in 

155  Lyons  v.  State,  1  Blackf.  (Ind.)  309;  State  v.  Glenn,  40  Ark.  332 
Smith  v.  Commonwealth,  91  Ky.  588;  Wells  v.  McCoy,  4  Cow.  (N.  Y.)  410 
People  v.  Felton,  36  Barb.  (N.  Y.)  429;  State  v.  Cobb,  44  Mo.  App.  375 
State  v.  Wilson,  14  La.  Ann.  450;  Roberts  v.  Gordon,  86  Ga.  386, 

"*  Bekling  v.  State,  25  Ark.  315. 

l57Huggins  v.  People,  39  111.  241;  Winninger  v.  State,  23  Ind,  228; 
Hartington  v.  Dennie,  13  Mass.  93;  State  v.  Scott,  20  Iowa,  63. 

553 r^mmonwealth  v.  Terry,  2  Duv.  (Ky.)  383;  People  v,  Caskney,  44 
B   .i..   118.     See  sec.  411. 

1M  Harbin  v.  State,  75  Iowa,  263. 

190  Roberts  v.  Gordon,  86  Ga.  386. 

m  Campbell  v.  State,  18  Ind.  375;  State  v.  Stewart,  74  Iowa,  336. 

"•Moorehead  v.  State,  38  Kan.  489;  Jackson  v.  State,  52  Kan.  249; 
State  v.  Murmann,  124  Mo.  502;  CMid.«>-v^taj^.2Jj:ex^^ 

,M  Reese  v.  United  States,  9  Wall.  13;  State  v,  Mackey,  i>b  Mo,  51,  Com* 
pare  State  v.  Smith,  66  N.  Car.  620. 

1W  State  v.  Hancock,  54  N.  J.  L.  393;  State  V,  Brooks,  48  La.  Ann,  855. 

"•  Silvers  v.  State,  59  N.  J.  L.  428. 


§  431)  BAIL.  *'  310 

the  bail  bond  and  grows  out  of  the  same  transaction.166  And 
the  mere  failure  to  indict  dees  not  discharge  the  bail,167  as  the 
court  must  release  the  principal.168  And  it  matters  not,  though 
the  principal  is  indicted  for  an  offense  different  than  the  one 
for  which  he  gives  bail.16D 

The  loss  of  the  indictment  has  no  effect  as  to  the  bond.170  But 
if  the  recognizance  is  taken  by  an  officer  who  had  no  authority 
so  to  do,  it  is  void.171  And  if  the  bond  recites  no  crime  against 
the  law  it  is  void.172  And  when  the  principal  is  required  to  give 
bail  in  separate  and  distinct  sums,  a  single  bond  covering  the 
aggregate  amount,  is  void.173  And  so  if  the  office  of  the  justice 
is  changed  after  bail  is  given,  and  before  the  time  set  for  appear- 
ance, and  the  parties  without  any  knowledge  of  such  change 
appear  at  the  former  place,  the  bail  is  discharged.174 

Where  the  sureties  and  principal  are  liable  severally,  and  not 
jointly,  a  remission  of  the  penalty  after  forfeiture  does  not  re- 
lease the  sureties.175  A  bond  not  certified  and  filed  according 
to  law,  and  not  returned  until  the  officer  is  out  of  office  by  ex- 
piration of  his  term,  is  void.176  For  a  bond  taken  in  criminal 
cases  must  be  according  to  law.177     And  in  an  action  on  the 

,MHortsell  v.  State,  45  Ark.  59;  Commonwealth  v.  Skiggs,  3  Bush,  19; 
State  v.  Brooks,  48  La.  Ann.  855;  Arche  v.  Commonwealth,  10  Gratt.  627; 
State  v.  Kaskett,  3  Hill  (S.  Car.),  95.  Compare  People  v.  Felton,  36  Barb. 
429;  State  v.  Mathis,  3  Ark.  84;  State  v.  Langton,  6  La.  Ann.  282. 

107  Fitch  v.  State,  2  Nott  &  M.   ( S.  Car. )   558. 

""State  v.  Doane,  30  La.  Ann.  1194;  Fleece  v.  State,  25  Ind.  384;  Com- 
monwealth v.  Roberts,  4  Met.  (Ky.)  220;  Jones  v.  State,  11  Tex.  Cr. 
App.  412. 

'•'Pack  v.  State,  23  Ark.  235;  Puke  v.  State,  35  Tex.  424;  Common- 
wealth v.  Slocum,  14  Gray,  395;  Commonwealth  v.  Butland,  119  Mass.  317. 

""Crouch  v.  State.  25  Tex.  755;  Price  v.  State,  42  Ark.  178. 

aT1  State  v.  Winninger,  SI  Ind.  51;  Commonwealth  v.  Roberts,  1  Duv. 
(Ky.)    199.     Compare  Pack  v.  State,  23  Ark.  235. 

•"Foster  v.  State.  27  Tex.  236;  Nicholson  v.  State,  2  Ga.  363. 

"•United  States  v.  Goldstein,  1  Dill.  43;  State  v.  Buffum,  22  N  .H.  267. 

mHammon  v.   State,  38  Ind.  32. 

m  State  v.  Davidson,  20  Mo.  212. 

"s  State  v.  Pratt,  148  Mo.  402. 

177  Dickinson  v.  State,  20  Neb.  72;  Powell  ▼.  State,  15  Ohio,  579;  State  v. 
Clarke,  15  Ohio,  595;  Williams  t.  Shelby,  2  Oreg.  144;  State  v.  Winninger, 
81  Ind.  53. 


320  SUBETYSHIP    AND    GUARANTY.  (Ch.  15 

undertaking  of  bail,  the  obligation  of  the  sureties  is  not  affected 
by  the  question  whether  the  prosecution  of  the  offense  is  barred 
by  the  statute  of  limitations.178 

§  432.  Subrogation  in  Ckiminal  Cases. — To  enable  the 
bail  to  escape  the  payment  of  their  recognizance  by  performance 
with  which  the  recognizance  binds  them  to  do,  the  State  will 
lend  them  its  aid  in  every  proper  way  by  process  and  without 
process  to  seize  the  person  of  the  principal  and  compel  his  ap- 
pearance. This  is  the  kind  of  subrogation  which  exists  in  a 
criminal  case ;  that  is,  subrogation  to  the  means  of  enforcing  the 
performance  of  the  thing  which  the  recognizance  of  bail  is  in- 
tended to  secure  the  performance  of,  and  not  subrogation  to  the 
peculiar  remedies  which  the  State  may  have  for  collecting  the 
penalty.  Subrogation  to  the  State's  remedies  would  clearly  be 
against  public  policy  by  subverting  as  far  is  it  might  prove 
effectual  the  very  object  and  purpose  of  the  recognizance.179 
And  the  statute  conferring  on  sureties  on  bonds  to  the  United 
States  who  are  forced  to  pay  the  obligation,  priority  over  other 
creditors  does  not  apply  to  recognizances  in  criminal  proceed- 
ings, and  does  not  authorize  an  action  in  the  name  of  the  United 
States.  Its  only  advantage  is  the  priority  given  over  other 
creditors  of  the  principal,  and  not  in  the  mode  and  form  of 
procedure. 1S0 

§  433.  Effect  of  Forfeiture  of  Bond. — Where  the  prin- 
cipal makes  default  and  does  not  appear,  the  recognizance  be- 
comes ipso  facto  forfeited,  and  the  liability  of  the  sureties  arises 
and  becomes  absolute,  and  a  subsequent  arrest  of  the  principal 
does  not  work  an  exoneration  of  the  sureties.181  And  the  arrest 
of  the  principal  upon  a  bench  warrant  and  his  discharge  upon 
entering  into  another  recognizance  to  appear  and  answer  to  th^ 

"'United  States  v.  Dunbar,  83  Fed.  Rep.  151. 
"•United  States  v.  Ryder.  110  U.  S.  729. 

"•United  States  v.  Preston,  4  Wash.  C.  C.  446;  United  States  v.  Ryder, 
110  U.  S.  720. 
">  People  v.  Bennett,  136  N.  Y.  482. 


§  434)  bail.  321 

charge,  which  he  kept,  is  no  defense  to  an  action  on  the  first 
recognizance.182  And  so  a  subsequent  trial  and  conviction  of 
the  principal  does  not  affect  the  forfeiture.183  Because  a  surety 
cannot,  after  the  recognizance  has  been  forfeited,  discharge  him- 
self by  surrendering  his  principal.184 

§  434.  Setting  Aside  Forfeiture. — The  forfeiture  may- 
be set  aside  under  some  conditions.  Thus,  where  the  principal 
uses  due  diligence  and  is  not  guilty  of  laches  and  appears  as  soon 
as  possible,  with  no  intent  to  evade  the  law,  the  court  will  gener- 
ally grant  him  and  his  sureties  relief.185  Each  case,  however, 
must  be  decided  according  to  the  circumstances  surrounding 
it186 

It  is  within  the  power  of  the  court,  incidental  to  its  jurisdic- 
tion in  criminal  cases,  to  grant  relief  to  bail  where  the  default 
was  caused  by  the  sickness  or  death  of  the  accused  before  for- 
feiture, and  where  the  death  of  the  principal  occurs  after  for- 
feiture when  the  bail  is  fixed.  It  is  in  every  case  an  appeal  to 
the  discretion  of  the  court,  which  will  be  exercised  when  justice 
to  the  bail  demands  it  and  public  justice  and  policy  do  not  pro- 
hibit it.187  But  sickness  of  the  surety  is  no  defense,  the  princi- 
pal still  being  at  large.188  Threats  against  the  principal's  life 
is  a  sufficient  excuse  for  his  non-appearance  where  the  officers 
of  the  law  will  not  protect  him  on  being  so  requested.189  Thus, 
the  fact  that  the  principal  has  forfeited  his  bond  because  he 

"■People  v.  Anable,  7  Hill   (N.  Y.),  33. 

1M  Walker  v.   Commonwealth,  79   Ky.   292. 

1M  State  v.  McGuire,  16  R.  I.  519;  People  v.  Bartlett,  3  Hill  (N.  Y.), 
570;  State,  v.  Warren^  17  Tex.  283, 

im  Wray  v.  People,  70  111!  664. 

1M  People  v.  Flynn,  53  111.  App.  493;  Rawlings  v.  State,  38  Neb.  590; 
Riggen  v.  Commonwealth,  3  Bush.  493;  Hauglesben  v.  People,  89  111.  164; 
Commonwealth  v.  Oblenden,  135  Pa.  St.  530. 

18T  State  v.  Traphagen,  45  N.  J.  L.  134;  People  v.  Tubbs,  37  N.  Y.  586; 
Russell  v.  State,  45  Ga.  9;  Chase  v.  People,  2  Colo.  481;  People  r.  Manning, 
8  Cow.  297  ;   Baker  v.  State,  21  Tex.  Cr.  App,  359- 

"'People,  v.  Meehan,  14  Daly,  333. 

"»Fleenor  v.  State,  58  Ind.  166.  J 

21 


322     :  '  SURETYSHIP    AND    GTJAEANTY  (Cll.  15 

could  not  appear  without  danger  of  losing  his  life  by  a  mob,  will 
not  excuse  the  bail  unless  the  proper  authorities  were  applied  to 
and  were  unable  or  unwilling  to  extend  to  the  accused  the  pro- 
tection necessary  to  enable  him  to  appear.100 

In  order  to  receive  relief  the  principal  must  show  that  it  was 
not  his  own  fault  that  he  did  not  appear.191  The  surety  also 
must  not  be  in  fault  in  conniving  at  or  consenting  to  the  default, 
in  order  to  secure  relief.192  In  some  jurisdictions,  relief  will 
not  be  granted  until  trial  of  the  principal  and  conviction  or  dis- 
charge adjudged.193 

§  435.  Voluntary  Appeaeance  or  Aeeest  Aftee  Foe- 
peituee — Costs. — Generally  a  forfeiture  of  recognizance  will 
be  vacated  on  payment  of  costs  and  expenses,  where,  after  the 
default,  the  principal  voluntarily  appears  in  court,  in  case  suffi- 
cient cause  is  shown  for  his  failure  to  appear  according  to  the 
obligation  of  his  recognizance.194  The  costs  must  be  paid  be- 
fore relief  will  be  granted  in  any  case,195  and  also  the  other 
necessary  expense.196  And  a  mere  agreement  to  pay  the  costs 
is  not  sufficient;  they  must  actually  be  paid.197 

§  436.  Effect  of  Remission  of  Foefeituee. — After  re- 
mission of  the  forfeiture,  then  the  principal  stands  in  a  position 
as  if  no  forfeiture  had  occurred,  and  it  is  then  his  duty  to  com- 
ply with  the  condition  of  the  recognizance  and  appear  in  court 
•until  the  charge  against  him  is  legally  disposed  of.198 

"•  Weddington  v.  Commonwealth,  79  Ky.  582. 

M  People  v.  McFarland,  9  111.  App.  275;  United  States  V.  McGlashire,  66 
Fed.  Rep.  537 ;   Riggen  v.  Commonwealth,  3  Bush,  493. 

m  People  v.  Smith,  2  Hilt.   (N.  Y.)   523. 

,MRex  v.  Spencer,  1  Wils.  315;  Rex  v.  Finmore,  8  T.  R.  409;  State  v. 
Hamill,  6  La.  Ann.  257 ;  State  v.  Schexneider,  45  La.  Ann.  1445 ;  People  v. 
Coman,  5  Daly,  527;  People  v.  Fields,  6  Daly,  410;  People  v.  Wissig,  7 
Daly,  23;  State  v.  Saunders,  8  N.  J.  L.  177. 

"•  Rawlinga  v.  State,  38  Neb.  500. 

"•Ward  v.  Colquitt,  f.2  Ga.  207. 

"•People  v.  Brady  (N.  Y.),  19  Civ.  Pro.  Rep.  372. 

"•People  v.  Smith,  43  111.  App.  217. 

"•State  v.  Cornig,  42  La.  Ann.  416. 


§  437)  bail.  323 

And  an  appeal  does  not  lie  from  the  order  and  judgment  of 
the  court  in  recognizance  to  remit  the  forfeiture,199  except  in 
case  of  abuse  of  discretion.200 

The  power  to  remit  may  be  exercised  for  the  benefit  of  the 
sureties  as  well  as  for  the  principal.201 

If  after  forfeiture  the  accused  is  surrendered  by  the  bail,  and 
is  convicted  and  punished,  the  forfeiture  will  be  remitted  as  to 
the  sureties  ;202  and  if  the  accused  appears  and  stands  trial  and 
is  acquitted,  this  is  sufficient  ground  for  remission  of  the  for- 
feiture,203 or  if  he  is  convicted.204 

§  437.  Taking  Money  in  Lieu  of  Bail. — Where  no  author- 
ity is  given  by  statute  to  take  money  in  place  of  bail,  a  deposit 
of  money  so  taken  is  illegal.205  In  some  jurisdictions  the  stat- 
ute provides  for  taking  money  in  place  of  bail.206  In  these 
jurisdictions  where  money  may  be  deposited  as  bail,  and  the  for- 
feiture is  set  aside,  the  money  may  be  recovered  back.207  But 
where  no  authority  is  given  to  take  such  money,  after  it  is  de- 
posited with  the  sheriff,  it  cannot  be  recovered  back,208  though 
it  should  be  paid  into  the  county  treasury  just  as  if  collected 
upon  a  recognizance.209 

"•  Bross  v.  Commonwealth,  71  Pa.  St.  262;  Commonwealth  v.  Ober- 
lender,  135  Pa.  St.  566;  People  v.  Bennett,  136  N.  Y.  482. 

100  State  v.  Kraner,  50  Iowa,  582 ;  People  v.  Hobbs,  46  111.  App.  206 ;  State 
v.  Denny,  10  La.  Ann.  335;  Bjtrton  v.  State,  24  Tex.  250;  Commonwealth  v. 
Coleman,  2  Met.  382. 

101  Harbin  v.  State,  78  Iowa,  263;  State  v.  Rollins,  52  Ind.  168. 
*"  People  v.  Johnson,  4  N.  Y.  Supp.  705. 

*»  State  v.  Saunders,  8  N.  J.  L.  177 ;  People  v.  Higgins,  7  N.  Y.  Supp.  658. 

**  People  v.  Cooney,  9  N.  Y.  Supp.  285 ;  People  v.  Madden,  8  N.  Y.  Supp. 
631.     Compare  State  v.  Warrick,  3  Ind.  App.  508. 

106  Smart  v.  Cason,  50  111.  195;  Reinhard  v.  Columbus,  49  Ohio  St.  257; 
Butler  v.  Foster,  14  Ala.  323. 

"•  People  v.  Laidlow,  102  N.  Y.  588;  Morrow  v.  State,  6  Kan.  222;  Dean 
T.  Commonwealth,  1  Bush,  20;  Wash  v.  State,  3  Cold.  (Tenn.)  91. 

""Arquette  v.  Marshall  County,  75  Iowa,  191. 

**  Smart  v.  Cason,  50  111.  195. 

"*Rock  Island  t.  Mercer  County,  24  Dl.  35. 


TABLE  OF  CASES. 

Reference  to  Seetione. 


Abbott  v.  Morrissette,  112. 

Abbott  v.  Zeigler,  27. 

Abbrett  v.  Brown,  339. 

Abel  v.  Alexander,  48. 

Abrams  v.  Pomeroy,  69. 

Ackerman's  Appeal,   167. 

Ackley  v.   Parmenter,  379. 

Acres  v.  Curtis,  196,  197,  198. 

Adair  v.   Campbell,   406. 

Adams  v.  Flanagan,  199. 

Adams  v.  Gregg,  147. 

Adams  v.  Hayes,  200. 

Adams  v.  Huggins,  341,  347,  384. 

Adams  v.  Jones,  355. 

Adams  v.  Kellogg,  54. 

Adams  v.  People,  423. 

Adams  v.  Way,  117. 

Adler  v.  State,  414. 

Aetna  Ins.  Co.  v.  Fowler,   127. 

Aetna  Life  Ins.  Co.  v.  Mabbett,  287. 

Aetna  Life  Ins.  Co.  v.  Middleport, 

157,  191. 
Aetna  Nat.  Life  v.  Ins.  Co.,  28. 
Agawan  Bank  v.  Sears,  106. 
Agawan  Bank  v.  Strever,  87,  367. 
Aiken  v.   Barkley,   206. 
Aitkin  v.  Lang,  346,  368. 
Albany  Co.  v.  Dorr,  316. 
Alber  v.  Froehlich,  226. 
Alderman  v.  Roesel,  239. 
Aldershaw  v.  King,  341. 
Alderson  v.  Menes,  194. 
Aldous  v.  Cornwell,  110. 
Aldrich  v.  Ames,  382,  383,  395. 
Aldrich  v.  Blake,  151. 
Alexander  v.  Bryan,  242. 

(325 


Alexander  v.  Ison,  335. 

Alford  v.  Baxter,  145. 

Alger  v.  Scoville,  374,  486. 

Allen  v.  Berryhill,  92,  135. 

Allen  v.  Commonwealth,  423. 

Allen  v.  Jaquish,  295. 

Allen  v.  Kennig,  367. 

Allen  v.  Marney,  52. 

Allen  v.  Rightrnere,  349. 

Allen  v.  State,  260,  306,  308. 

Allen  v.  Wood,  329. 

Allerton  v.  Eldridge,  213. 

Allison   v.    Sutherlin,    158. 

Alschuler  v.  Scheff,  295. 

American  Dist.  Tel.  Co.  v.  Lennig, 

69,  80. 
Ames  v.  Armstrong,  23. 
Ames  v.  Colburn,  105. 
Ames  v.  Dorrok,  259. 
Ames  v.  Jackson,  372. 
Ames  v.  Maclay,  95. 
Ames   v.   Williams,   259. 
Amherst    Bank    v.    Root,    282,    291, 

298. 
Ammons  v.  Whitehead,  228. 
Amy  v.  Supervisors,  337. 
Anderson  v.  Blakeley,  354. 
Anderson  v.  Johett.  333. 
Anderson  v.  Langdon,  298. 
Anderson  v.  Spencer,  380,  382,  383, 

416. 
Anderson  v.  Thompson,  310. 
Anderson  v.  Warne,  365. 
Andre  v.  Fitzhugh,  214. 
Andrews  v.  Bealls.  88. 
Andrews    v.    TTord,    277. 
Andrews  v.  Morrett,  43. 
Andrews  v.  Tedford,  339. 

) 


326 


TABLE    OF    CASES. 


Reference  to  Sections. 


Angero  v.  Keen,  71. 

Angle  v.  Insurance  Co.,  57. 

Anthony  v.  Fritts,  170,  171. 

Anthony  v.  Herman,  12. 

Antisdel    v.    Williamson,    341. 

Apgar  v.  Hiler,  382,  383. 

Apgar  v.  Wilson,   183. 

Appleby  v.   Robinson,   412. 

Appleton  v.  Bascom,  11,  35,  176,  177, 
187. 

Appleton  v.  Parker,  122. 

Arche  v.   Commonwealth,  431. 

Archer  v.  Douglass,  171. 

Archer  v.  Hale,  241. 

Archer  v.  Noble,  324. 

Ardesco  Oil  Co.  v.  Oil  Co.,  193. 

Arents  v.  Commonwealth,  339,  357. 

Arkansas  Valley,  etc.,  Co.  v.  Lin- 
coln, 30. 

Arlington  v.  Merricke,  284. 

Armitage  v.  Pulmer,  209. 

Armstrong  v.  Canal  Co.,  341. 

Armstrong   v.    Gilchrist,    175. 

Armstrong  v.  Harsham,  206. 

Armstrong  v.   Toler,   38. 

Arnold   v.    Bryant,    347. 

Arnott  v.  Railroad  Co.,  31. 

Arnott  v.  Symonds,  347. 

Arquette  v.  Marshall  County,  437. 

Asher  v.  Cabell,  326. 

Ashland  Bank  v.  Jones,  357. 

Askins  v.  Commonwealth,  421. 

Aspinwall  v.  Sacchi.  3,  203. 

Atkins  v.  Tredgold,  371. 

Atkinson  v.  Smith,  271,  272. 

Atlantic,  etc.,  Tel.  Co.  v.  Barnes, 
127,  287,  290,  292. 

Atlas  Bank  v.  Anthony.  291. 

Atlas  Bank  v.  Brownell,  88,  142, 
287,  288,  291,  293. 

Atterstein  v.  Alpaugh,  75. 

Atwater  v.  Farthing,  206. 

Atwood  v.  Lester,  339,  347. 

Atwood    v.  Vincent,   152. 

Auchawpaugh  v.  Schmidtt,  173. 


Australian    Joint    Stock    Bank    v. 

Bailey,  66,  67,  299. 
Avant  v.  State,  419. 
Avery  v.  Rowell,  26. 
Avers  v.  Dixon,  11. 
Ayers  v.  Hite,  272. 
Ayers  v.  Milony,  51. 
Ayrault  v.  Bank,  336. 


B. 


Babb  v.  Oakley,  421. 
Babcock  v.  Bryant,  348. 
Babcock  v.  Hubbard,  23. 
Babka  v.  People,  325. 
Bachelder  v.  Fiske,  194. 
Bachmer  v.   Schuylkill,  61. 
Backenstedt  v.  Perkins,  303. 
Backerbush  v.  Dorsett,  233. 
Backhouse  v.  Hall,  362. 
Bacon  v.  Fairman,  252. 
Badely  v.  Bank,  184. 
Badham  v.  Jones,  333. 
Bagley  v.  Cohen,  359  . 
Bailey  v.  Adams,  46. 
Bailey  v.   Croft,  40. 
Bailey  v.  Rosenthal,  228. 
Bailey  Loan  Co.  v.  Seward,  4. 
Baker  v.  Bradley,  341. 
Baker  v.  Briggs,  130,  148,  170. 
Baker  v.  Bryan,  112. 
Baker  v.   Butler,  336. 
Baker  v.  Frellson,  233. 
Baker  v.  Kelly,  349. 
Baker  v.  Kennett,   135. 
Baker  v.  Robinson,  347. 
Baker  v.  State,  434. 
Baker  v.  Walker.  122. 
Baker  City  v.  Murphy.  305. 
Balderstone  v.  Rubber  Co.,  394 
Baldwin  v.  Bank,  336. 
Baldwin  v.  Fleming,   10.   199. 
Ball  v.  Chancellor,  273. 
Ballston  r.   Wood,  8. 


TABLE  OF  CASES. 
Reference  to  Sections. 


327 


Bainfard  v.  lies,  72,  286. 
Bancroft  v.  Abbott,  190. 
Band  v.  Gifford,  130,  132. 
Bangs  v.  Strong,  64,  95,  130. 
Bank  v.  Andrews,  140. 
Bank  v.  Barrington,  72,  297. 
Bank  v.  Brown,  19. 
Bank  v.  Close,  22. 
Bank  v.  Coster,  40. 
Bank  v.  Creditors,  271,  272. 
Bank  v.  Eyre,  10. 
Bank  v.  Haskell,  51,  147. 
Bank  v.  Hoch,  29. 
Bank  v.  Hyde,  55,  102,  104. 
Bank  v.  Jeffs,  171. 
Bank  v.  Johnson,   118. 
Bank  v.  Kirkwood,  13,  21. 
Bank  v.  Layne,  210. 
Bank  v.  Lumber  Co.,  19. 
Bank  v.  Botaces,  158. 
Bank  v.  Botius,  325. 
Bank  v.  Railway  Co.,  126. 
Bank  v.  Sinclair,  348. 
Bank  v.  Sloo,  355. 
Bank  v.  Smith,  77,  183,  319. 
Bank  v.  State,  134. 
Bank  v.  Whitman,  35. 
Bank  v.  Winart,  112. 
Bank  v.  Wollaston,  72,  286. 
Banning  v.  Hall,  89. 
Banor  v.  Macdonald,  286. 
Barber  v.  Burrows,  55. 
Barclay  v.  Lucas,  84. 
Bargate  v.  Shortridge,  28. 
Barge  v.  Van  Der  Horck,  208. 
Barker  v.  Barker,  38. 
Barker  v.  Scudder,  353,  390. 
Barnes  v.  Boyers,  21. 
Barnes  v.  Sammons,   145,   146. 
Barnes  v.  Van  Keuren,  36,  42. 
Barnes  v.  Whitaker,  334. 
Barney  v.  Clark,  147. 
Barney  v.  Grover,   162. 
Barr  v.  Mitchell,  347. 
Barrett  v.  Bass,  132. 
Barrett  v.  Davis,  113. 


Barrett  v.  May,  349. 

Barrington  v.  Bank,  285. 

Barrow  v.  Shields,   145. 

Barry  v.  Association,  70. 

Barry  v.  Rawson,  194,  210. 

Bartels  v.  Beople,  333. 

Barth   v.   Graf,    180,   182,    183,   195, 

382,  383. 
Bartholomew  v.  Bank,  152,  155,  156, 

157. 
Bartlett  v.  Attorney  General,  313. 
Bartlett  v.  Board,  56. 
Bartlett  v.  Cunningham,  145. 
Barton  v.  State,  436. 
Baskin  v.  Andrews,  86. 
Bassett  v.  Hughes,  12. 
Basshears  v.  Rowe,  341,  384. 
Batchelder  v.  White,  55,  100. 
Batchelder  v.  Jennings,  364. 
Batchelor  v.   Bank,  291. 
Bates   v.   Bank,   146. 
Bathwell  v.  Shiffield,  327. 
Bau  v.  Mackey,  113. 
Baucus  v.  Barr,  251. 
Baucus   v.    Stover,   252. 
Bauer  v.  Gray,  192. 
Baum  v.  Lyman,  260. 
Bauman  v.  Blanchard,  197. 
Bay  v.  Tallmadge,  95. 
Bay  v.  Williams,  13. 
Bayle  v.  Ins.  Co.,  298. 
Bayless  v.  Bayless,  250. 
Bayless  v.  Wallace,  381. 
Bayne  v.  Bank,  291. 
Beach  v.  Doynton,  162. 
Beakes  v.  Da  Cunha,  341. 
Beal  v.  Brown,  372. 
Bealer  v.  Mayor,  116. 
Bean  v.  Barker,  52,  54,  411. 
Beard  v.  Roth,  248. 
Bearden  v.  State,  402,  421. 
Beardsley    v.    Hawes,    4,    340,    3481, 

350,  359. 
Beaty  v.  Grim,  390. 
Beaver  v.  Beaver,  149. 
Beaver  v.  Slanger,  154,  191. 


328 


TABLE    OF    CASES. 
Reference  to  Sections. 


Bebee  v.  Moore,  36. 

Bechervaise  v.   Lewis,   144. 

Becker  v.  Northway,   144. 

Beers  v.  Haughton,  412. 

Belden  v.  Hurlbut,  51. 

Belding  v.  State,  424,  426,  431. 

Belknap  v.   Bender,   379. 

Belknap  v.  Davis,  408. 

Bell  v.  Boyd,  8,  204. 

Bell  v.  Bruen,  356. 

Bell  v.  Morrison,  90. 

Bell  v.  People,  255. 

Bell  v.  Pierce,  405. 

Bell  v.  Walker,  134,  226. 

Bellaire  v.  Ebsworth,  83. 

Belleville    Sav.    Bank    v.    Bornman, 

129,  350. 
Bellinger  v.  Thompson,  247. 
Belloni  v.  Freeborn,  67,  356. 
Belond  v.  Gray,  415. 
Bemis  v.  Gannett,  233. 
Bencbfield  v.  Haffey,  183,  319. 
Benjamin  v.  VerXooy,  1,  49,  171. 
Bennett  v.  Buckman,  180. 
Bennett  v.  Draper,  356. 
Bennett  v.  Graham,  243. 
Bennett  v.  State,  328. 
Benny  v.  Crane,  348. 
Benson  v.  Phipps,  46. 
Benthal  v.  Judkins,  347. 
Benton  v.  Martin,  129. 
Berg  v.  Radcliff,  6,  68. 
Bergen  v.  Williams,  223. 
Berghaus  v.  Alter,  97. 
Berkhead  v.  Brown,  103. 
Bernheimer  v.  Charak,  131,  216. 
Berridge  v.  Berridge,  208. 
Berry  v.  Pullen,  375. 
Berryman  v.  Manker,  110. 
Bessinger  v.  Dickerson,  334. 
Bessinger  v.  Wren,  80. 
Best  Brewing  Co.  v.  Klassen,  28,  30. 
Beater  v.  Walker,  359. 
Beveridge  v.  Chatlain,  405. 
Bickford  v.  Gibbs,   39,  341,  342. 
BiggB  v.   Latham,  35. 


Bill  v.  Barker,  83. 

Billairo  v.  Ebsworth,  79. 

Billings  v.  Lafferty,  333. 

Billings  v.  Teeling,  332. 

Bing  v.  Clarkson,  122. 

Bird  v.  Mitchell,  243,  246. 

Birdsall  v.  Heacock,  340,  356. 

Birkmyr  v.  Darnell,  374. 

Bisbee  v.  Gleason,  264. 

Bischoff  v.  Engteel,  242. 

Biscoe  v.  Jenkins,  371. 

Bishop  v.  Earl,  411. 

Bishop  v.  Eaton,  348,  355. 

Bishop  v.  State,  426. 

Bissell  v.  Lewis,  370. 

Bissell  v.  Saxton,  273,  276,  301,  302, 

Bissig  v.  Britton,  382,  383. 

Bize  v.  Dickanson,  394. 

Black  v.  Bank,  164. 

Black  v.   Gentery,  272. 

Black  v.  Oblender,  70. 

Blackerbush  v.  Dorsett,  236. 

Blackmore  v.  Granbury,  97. 

Black  River  Bank  v.  Page,  132,' 

Black's  Appeal,  361. 

Blackstone  Bank  v.  Hill,  121. 

Blair  v.  Ins.  Co.,  84,  285. 

Blanding  v.  Wilson,  364. 

Blanser  v.  Diehl,  261. 

Blazer  v.  Beverly,  115. 

Blazer  v.  Brindy,  64. 

Bleeker   v.   Hyde,   45. 

Block  v.  Dorman,  90. 

Bloxsom  v.  Williams,  49. 

Bluthenthal  v.  Moore,  377,  384,  392, 

396. 
Blydenburg  v.  Bingham,  137. 
Boalt  v.  Brown,  107,  361,  362. 
Board  v.  Bank,  134. 
Board  v.   Branham,   138. 
Board  v.  Cincinnati,  etc.,  Co.,  385. 
Board  v.  Jewell,  316. 
Board  v.  Pabst,  71. 
Board  v.  Sweeney,  52. 
Board  v.  Thompson,  38. 
Boardman  v.   Paige,   197. 


TABLE    OF    CASES. 
Reference  to  Sections. 


329 


Boardman  Tower  v.  Flagg,  314. 

Boardwall  v.  Paige,  172. 

Bobo  v.  Vaiden,   247. 

Bogarth  v.  Broedlove,  109. 

Boggs  v.  Curtin,  187. 

Boggs  v.  State,  316. 

Boggs  v.  Teaekle,  408,  412. 

Bohannon  v.  Combs,  73. 

Bohanon  v.  Pope,  12. 

Bollman  v.  Rosewalk,  52,  54. 

Boltz's  Estate,  338. 

Bolg  v.  Stuhl,  292. 

Bones  v.  Aiken,  163. 

Bonham  v.  People,  263,  264. 

Bonhward  v.  Robinson,   195. 

Bonner  v.  Nelson,  1 14. 

Bonney  v.  Seely,  181,  188. 

Boone  Co.  v.  Jones,  304,   314. 

Booth  v.  Eighmie,  397. 

Booth  v.   Storrs,   126,   140. 

Boothmaus  Sav.  Bank  v.  John- 
son,  14. 

Boothby  v.  Giles,  337. 

Boraman  v.  Carhartt,  359. 

Borchseniws  v.  Canuston,  377,  397. 

Borden  v.  Gilbert,  359. 

Border  v.  Peay,  371. 

Boreland  v.  Washington  County, 
292. 

Boskin  v.  Andrews,  86. 

Bosley  v.  Taylor,  197,  209. 

Bosnian  v.  Akeley,  359. 

Boston,  etc.,  Co.  v.  Moore.  384. 

Bostwick  v.  Van  Voorliis,  87,  142, 
287,  292,  293,  296. 

Botkin  v.  Kleinschmidt,  265. 

Bottles  v.  Miller,  91. 

Bouhvard  v.  Robinson,  180. 

Bowen  v.  Beck,   12. 

Bowen  v.  Burdick,  404. 

Bowen  v.  Haskins,  202. 

Bowne  v.  Bank,  288,  291,  294. 

Bowers  v.   Fleming,  333. 

Bowmaker  v.  Moore,  66,  414. 

Bowman  v.  Blodgett,  406. 

Bowyer  v.  Hewitt,  407. 


Boyce  v.  Ewart,  354. 
Boyce  v.  Murphy,  399. 
Boyd  v.  Beville,  178. 
Boyd  v.  Boyd,  23. 
Boyd  v.  Commonwealth,  258. 
Boyden  v.  United  States,  316. 
Boyer  v.  Soules,  382. 
Boyle  v.  St.  John,  249,  258,  267. 
Boynton  v.  Phelps,  100,  233. 
Boynton  v.  Robb,  233. 
Brackett  v.  Rich,  353. 
Bradbury  v.  Morgan,  346. 
Bradford  v.  Corey,  16. 
Bradford  v.  Hubbard,   130. 
Bradley  v.  Burwell,  86. 
Bradley  v.  Richardson,  394. 
Bragg  v.  Patterson,  160,  163,  193. 
Bragg  v.  Shaw,  77,  138. 
Braiden  v.  Mercer,  265. 
Brainard  v.  Jones,  269. 
Brainard  v.  Reynolds,  359. 
Braman  v.  Russell,  382,  383. 
Bramble  v.  Ward,  35,  89. 
Branch  Bank  v.  James,  171. 
Brand  v.  Whelan,  383. 
Brandenbecker  v.  Lowell,  97. 
Brandenburg  v.  Flynn,  73,  168. 
Brandon  v.  Brandon,  273. 
Branger  v.  Buttrick,  27. 
Braugh  v.   Griffith,   164 
Bray  v.  State,  266. 
Brazier  v.  Clark,  23,  249,  254. 
Bredenburg  v.  Snyder,  172. 
Breed  v.  Hillhouse,  44. 
Brengle  v.  Bushey,  123. 
Brett  el  v.  Williams,  26. 
Brewer  v.  State,  419. 
Brewer  v.  Thorp,  82. 
Brewster  v.  Baker,  37. 
Brewster  v.  Silence,  347. 
Brick  v.  Banking  Co.,  152. 
Bridges  v.   B]ake.  36. 
Briggs  v.  Dawning,  36. 
Briggs  v.  Hinton,   194. 
Briggs  v.  Latham,  342,  357. 
Bright  v.  McKnight,  356. 


S30 


TABLE    OF    CASES. 
Preference  to  Sections. 


Brisindine  v.  Martin,  ISO. 
Briton  v.  Fort  Worth,  310,  314. 
Britton  v.  Diersher,  102. 
Britton  v.  Nicolls,  336. 
Brobst  v.  Killian,  328. 
Brock  v.  Hopkins,  333. 
Brockett  v.  Martin,  334. 
Broekway  v.  Petted,  59. 
Bronson  v.  Machine  Co..  130. 
Brooking  v.  Bank.  143. 
Brooks  v.  Brooks,  68. 
Brooks  v.  Governor,  320. 
Brooks  v.  Whitniore,  209,  260. 
Bros9  v.  Commonwealth,  436. 
Brough's  Estate,  157. 
Broughton  v.  Bank,  95. 
Brown  v.  Beach.  163. 
Brown  v.  Brown,  341. 
Brown  v.  Chambers,  131. 
Brown  v.  Davenport,  126. 
Brown  v.  Howe,  411. 
Brown  v.  Jetmore.  54. 

Brown  v.  Kortz,  397. 

Brown  v.  Lattimore,  72. 

Brown  v.  Lester.  333. 

Brown  v.  People,  426. 

Brown  v.  Ray,  208. 

Brown  v.  State.  247. 

Brown  v.  Weaver,  326. 

Browne  v.  Lee,   198. 

Brownell  v.  Winmi,  110. 

Brownlee  v.  Lowe,  36. 

Browning  v.  Merritt,  347. 

Brubaker  v.  Okeson,  114,  147. 

Bruce  v.  United  States,  59. 

Bruen,  v.  Gillet,  23. 

Brunott  v.  McKee,  324. 

Brunswick  v.  Snow,  337. 

Bryan  v.  Kelly,  322. 

Bryan  v.  McDonald,  198. 

Bryan  v.  United  States,  70. 

Bryant  v.  Eastman,  347. 

Bryant  v.  Smith,  178. 

Bryant  v.  Stout,  348. 

Buch  v.  De  Rivera,  362. 

Buchanan  v.  Clark.  20. 


Bucklen  v.  Huff,  55.  102. 
Buckman  v.  Rugglea,  304. 
Buckner  v.  Stewart,   194. 
Buel  v.  Gordon,  408. 
Buell  v.  Burlingame,  211. 
Buflinghain  v.  Smith,  430. 
Bugbee  v.  Kendrickson,  398. 
Building   Association  v.   Cummings, 

53,  298. 
Bull  v.  Coe.  134. 
Bull  v.  Mahin.  109. 
Bullard  v.  Bank,  29. 
Bullard  v.  Johns,  3S4. 
Bullen  v.  Dresser,  406. 
Bullock  v.  Campbell.  17G.  211. 
Bullowa  v.  Orga,  67,  77,  394. 
Bunce  v.  Bunce.  244,  261. 
Bunn  v.  Jetmore.  52. 
Burgess  v.  Eve,  88,  292,  367. 
Burke  v.  Crurer.  123. 
Burleigh  v.  Stott,  371. 
Burlington  Ins.  Co.  v.  Johnson,  75. 
Burnap  v.  Bank,  IS. 
Burne  v.   Schneeko,    163. 
Burnell  v.  Minot,   194. 
Burnet  v.  Henderson,  60. 
Burnham  v.  Kidwell,  25. 
Burns  v.  Bank,  73. 
Burns  v.  Parish,  181. 
Burson  v.  Andes,  66. 
Burton  v.  Stewart,  183. 
Bush  v.  Critehfield,  290. 
Bush  v.  State.  260. 
Bushnell  v.  Bushnell,  202,  211. 
Butcher  v.  Chandler.   186. 
Butler  v.  Bissel,  411. 
Butler  v.  Butler,  164,  1S6. 
Butler  v.  Foster.  437. 
Butler  v.  Sisson,  253. 
Butler  v.  United  States,  51. 
Byers  v.  Alcorn,  212. 


Q 


Cabot  v.  Haskins.  341. 
Cade  v.  Gordon.  418. 


TABLE    OF    CASES. 
Reference  to  Sections. 


831 


Cadwell  v.  Colgate,  221. 

Cady  v.  Shepard,  347. 

Cahill  v.  Bigelow,  372,  388,  398. 

Cain  v.  State,  429. 

Caldwell     v.     Commonwealth,     426, 

428. 
Caldwell  v.  Heitshu,   129. 
Caldwell  v.  Sigourney,  90. 
Calkins  v.  Chandler,  382,  384,  391. 
Call  v.  Ruflin,  264. 
Calvert  v.  Dock  Co.,  67,  103,  138. 
Calvert  v.  Gordon,  87,  306,  345. 
Calvo  v.  Davies,  11,   12,   116. 
Cambria  Iron  Works  v.  Keynes,  36. 
Cambridge  v.  Fifield,  313. 
Camden  v.  Doremus,  359. 
Camp  v.  Bostwick,  211. 
Camp  v.  Howell,  115. 
Campau  v.  Seeley,  406,  411. 
Campbell  v.  Baker,  363. 
Campbell  v.  Cable,  328. 
Campbell  v.  Floyd,  21. 
Campbell  v.  State,  431. 
Canal  Co.  v.  Vallette,  28. 
Cane  v.  Burney,  194. 
Carey   v.    State,    324. 
Carmack  v.  Commonwealth,  324. 
Carmen  v.  Elledge,  348. 
Carnegie  v.  Morrison,  370. 
Carpenter  v.  Corwith,  337. 
Carpenter  v.  Denon,  64. 
Carpenter  v.  King,  95,  148,  171. 
Carpenter  v.  Longan,  357. 
Carpenter  v.  Minter,  183,  186. 
Cardell  v.  McNeil,  390. 
Carlisle  v.  Campbell,  378. 
Carrick  v.  Morrison,  351. 
Carrington  v.  Ford,  411. 
Carroll  v.  Forsyth,  89. 
Carroll  County   Sav.  Bank  v.   Stro- 

ther,  366. 
Carson,  etc.,  Asso.  v.  Miller,  138. 
Carter  v.  Duggan,  325. 
Cartly  v.  Allen,  310. 
Carver  v.  Carver,  62. 
Carville  v.  Crane,  389. 


Case  v.  Howard,  348. 

Cash  v.  People,  326. 

Caskie  v.  Harrison,  23. 

Casoni  v.  Jerome,  141,  243,  287. 

Caspen  v.  People,  320,  324. 

Cass  v.  Adams,  224. 

Cassady  v.  Trustees,  76,  318. 

Castner  v.  Slater,  1. 

Cathcart  v.  Foulke,   194. 

Catt  v.  Roat,  397. 

Cavazos  v.  Trevine,  347. 

Cawley  v.  People,  314. 

Central  Investment  Co.  v.  Miles,  359. 

Central  Trans.  Co.  v.  Car  Co.,  30. 

Central  Trust  Co.  v.  Bank,  357. 

Chadwick  v.  Eastman,  55,  110. 

Chaffee  v.  Jones,  194,  196. 

Chambers  v.  Cochran,  64. 

Chambers  v.  Prewitt,  151. 

Chamberlain  v.  Godfrey,  321. 

Chamblees  v.  State,  418. 

Champion  v.  Doty,  388. 

Champion  v.  Griffith,  347. 

Champion  v.  Noyes,  408. 

Chandler  v.  Brainard,  195. 

Chandler  v.  Higgins,  188. 

Chandler  v.  Westfall,  347. 

Chapell  v.  State,  424. 

Chapin   v.   Lapham,   380. 

Chapin  v.  Livermore,  263. 

Chapin  v.  Merrill,  382. 

Chapin  v.  Waters,  251. 

Chapline  v.  Atkinson,  374,  389,  394, 

396. 
Chapline  v.  Campbell,  207. 
Chapline  v.  Robertson,  214. 
Chapman  v.  Collins,  94. 
Chapman  v.  Garber,  8.  204. 
Chapman  v.  Morrill,  22. 
Chapman  v.  Stucky,  217. 
Chappell  v.  Spencer,  109. 
Charles  v.  Hoskins,  223,  324. 
Charlotte  v.  Gow,   127. 
Charter  v.  Beckett,  39. 
Chase  v.  Beraud,  228. 
Chase  v.  Day,  398. 


332 


TABLE    OF    CASES. 
Reference  to  Sections. 


Chase  v.  Hathorn,  54,  78. 

Chase  v.  Holton,  412. 

Chase  v.  People,  423,  428,  434. 

Cheboygan  Co.  v.  Erratt,  301. 

Cheesebrough  v.  Millard,  165. 

Cheetham  v.  Ward,  251. 

Chelmsford  v.  Demarest,  70,  305. 

Cherry  v.  Wilson,  204. 

Chester  v.  Broderick,  229. 

Chester  v.  Leonard,  138. 

Chicago  v.  Gage,  51,  56,  304,   315, 

318. 
Chicago,  etc.,  Bank  v.  Black,  363. 
Chicago,  etc.,  R.  R.  Co.  v.  Bartlett, 

300,  317. 
Chicago,   etc.,    Coal    Co.   v.   Liddell, 

379. 
Chicago  Trust  &  Sav.  Bank  v.  Nord- 

gren,   17. 
Chickasaw  County  v.  Pitcher,  122. 

Chields  v.  Smith,  412. 

Child  v.  Powder  Works,  183. 

Childers  v.  State,  431. 

Chilton  v.  Chapman,  208. 

Choate   v.    Arrington,    9,    203,    247, 
252. 

Choate  v.  Jacobs,  258. 

Choteau  v.  Jones,  160,  174,  193,  301. 

Chrisfield  v.  State,  163. 

Chrisman  v.  Harman,  154. 

Christ  v.  Burlingham,  66,  356. 

Christian  v.  Keen,  102. 

Christner  v.  Brown,   18. 

Church  v.  Maloy,  115. 

Churchill  v.  Bradley,  37. 

Chute  v.  Patte,  46. 

Cincinnati,   etc.,   R.   R.   v.   Morrell, 
282. 

Citizens'  Bank  v.  Elliott,  99. 

Citizens'  Loan  Asso.  V.  Nugent,  305. 

City  Bank  v.  Hopson,  340,  349. 

City  Nat.  Bank  v.  Dudgeon,  154. 

City  Nat.  Bank  v.  Phelps,  348. 

Claflin  v.  Ostrom,  82,  357. 

Clagett  v.  Ward,  408. 

Clancy  v.  Kenworthy,  323. 


Clapp  v.  Rice,  133,  187,  210. 

Clark  v.  Barrett,   14. 

Clark  v.  Birley,  113,  123. 

Clark  v.  Bush,  74. 

Clark  v.  Carrington,  321. 

Clark  v.  Devlin,  16,  35. 

Clark  v.  Gordon,  82. 

Clark  v.  Lamb,  328. 

Clark  v.  Mallory,  133,  294,  369. 

Clark  v.  Merriam,  347. 

Clark  v.  Osborn,  146. 

Clark  v.  Remington,  352. 

Clark  v.  Russell,  44,  341. 

Clark  v.  Surety  Co.,  247. 

Clark  v.  Wilkinson,  260,  303. 

Clark  v.  Withers,  328. 

Clarke  v.  West,  253. 

Clarke  v.  Williams,  51. 

Clarkson  v.  Commonwealth,  258. 

Clay  v.  Edgerton,   129,  349. 

Clay  v.  Freeman,  151. 

Clayton  v.  Grayson,  347. 

Clayton's  Case,  99. 

Clemens  v.  Prout,  181. 

Clements  v.  Langley,  212. 

Clermont  Bank  v.  Wood,  58. 

Clifford  v.  Luhring,   377,  381,  391, 

392,  396. 
Clifton  v.  Wynne,  337. 
Clippinger  v.  Cress,  121. 
Clopton  v.  Hall,  36. 
Closson  v.  Morrison,  323. 
Cluff  v.  Day,  255. 
Clune  v.  Ford,  42. 
Clymer  v.  DeYoung,  384. 
Coates  v.  Coates,  137. 
Cobb  v.  Haynes,  209. 
Cochran  v.   Baker,   138. 
Cocking  v.  Wade,  326. 
Cocks  v.  Barker,  50. 
Coe  v.  Cassidy,  81. 
Coe  v.  Vogdes,  87. 
Coffee  v.  Tevis,  194. 
Coffin  v.  McLean,  144. 
Coffin  v.  University,  41. 
Coffman  v.  TIopKins,  163. 


TABLE    OF    CASES. 


333 


Reference  to  Sections. 


Colburn  v.   Averill,   347. 

Colburn  v.  State,  261. 

Cole  v.  Bank,  34S. 

Cole  v.  Cranford,  324. 

Cole  v.   Hutchinson,  398. 

Cole  v.  Justice,  144. 

Cole  v.  Pennoyer,  24. 

Coleraine  v.  Bell,  307,  337. 

Coles  v.  Pack,  43. 

Colgrove  v.  Tallman,  21. 

Collins  v.  Gilbert,  347. 

Collins  v.  McDaniel,  333. 

Colman  v.  Railroad  Co.,  28. 

Colter  v.   Morgan,   313. 

Columbia  Co.  v.  Massic,  310. 

Comegys  v.  Cox,  228. 

Commercial  Bank  v.  Bank,  131. 

Commercial  Bank  v.  Provident  Insti- 
tution, 357. 

Commercial  Exchange  Bank  v.  Mc- 
Leod,  323. 

Commercial  Fire  Ins.  Co.  v.  Morris, 
382. 

Commissioners  v.  O'Rourk,  63. 

Commonwealth  v.  Austin,  423. 

Commonwealth  v.  Barrows,  321. 

Commonwealth  v.  Brand,  424. 

Commonwealth  v.  Bronson,  424. 

Commonwealth  v.  Bryan,  256. 

Commonwealth  v.  Butland,  431. 

Commonwealth  v.  Coleman,  421, 
424,  436. 

Commonwealth  v.  Conly,  316. 

Commonwealth  v.  Coutner,  325. 

Commonwealth  v.  Cox,  203,  260. 

Commonwealth  v.  Fry,  325. 

Commonwealth  v.  Gibson,  244. 

Commonwealth  v.  Gould,  273,  274. 

Commonwealth  v.  Holmes,  312. 

Commonwealth  v.  Julius,  265. 

Commonwealth  v.  Kendig,  49,  334. 

Commonwealth  v.  Knettle,  337  . 

Commonwealth  v.  Lentz,  325. 

Commonwealth  v.  Longnecker,  250. 

Commonwealth  v.  McClure,  337. 

Commonwealth  v.  Miller,  64,  95. 


Commonwealth     v.     Oblenden,    434, 

436. 
Commonwealth  v.  Overby,  424. 
Commonwealth  v.  Pray,  203. 
Commonwealth  v.  Querby,  414. 
Commonwealth  v.  Ramsey,  418. 
Commonwealth  v.  Rhoads,  205. 
Commonwealth  v.  Roberts,  431. 
Commonwealth   v.   Schick,   418. 
Commonwealth  v.  Skiggs,  431. 
Commonwealth  v.  Slocum,  431. 
Commonwealth  v.  Stockton,  324. 
Commonwealth  v.  Stub,  242. 
Commonwealth  v.  Terry,  431. 
Commonwealth  v.  Toms,  75,  310. 
Commonwealth  v.  Webster,  424,  426. 
Comonwealth  v.  Wenrick,  242. 
Commonwealth   v.   Wolbert,   314. 
Comstock  v.  Gage,  51,  76,  142. 
Comstock  v.  Drohan,   11. 
Concord  v.  Pillsbury,  144. 
Condit  v.  Winslow,  251. 
C'ongdon  v.  Read,  354. 
Conklin  v.  Conklin,  146. 
Conly  v.  Buck,  208. 
Conn  v.  State,  112. 
Connecticut  M.  L.  Ins.  Co.  v.  Scott, 

83,  127. 
Connell  v.  Crawford  Co.,  337. 
Connely  v.  Bong,  163. 
Connolly  v.  Dolan,  166. 
Conover  v.  Hill,  201. 
Conover  v.   Stillwell,   341. 
Constant  v.  Matteson,  189. 
Converse  v.  Reeves,  65. 
Converse  v.  United  States,  312. 
Conwell  v.  McCowan,  20,  157. 
Cook  v.  Berry,  11. 
Cook  v.  Caroway,  27. 
Cook  v.  King,  224. 
Cooke  v.  Orne,  348,  355. 
Cooper  v.  Joel,  366. 
Coots  v.  Farnsworth.  94. 
Copis  v.  Middleton,   153,  178. 
Corielle  v.  Allen,  115. 
Corkins  v.  Collins,  392. 


334 


TABLE    OF    CASES. 
Reference  to  Sections. 


Corlies  v.  Estes,  117. 

Corliss  v.  Fleming,  90. 

Cormon  v.  Elledge,  355. 

Cornise  v.  Kellogg,  15. 

Corrington  v.  Foster,  247. 

Coruthwaite  v.  Bank,  246. 

Coster  v.  Mayor,  358. 

Coster  v.  Watson,  27. 

Cothren  v.  Connaughton,  27. 

Cotton  v.  Alexander,  372. 

Cotton  v.  Simpson,  110. 

Couch  v.  Terry,  196. 

Coulter  v.  Richmond,  347. 

Coulthart  v.   Clementson,   306,   346, 

367,  368. 
County  Board  v.  Bateman,  310. 
County  Commissioners  v.  Hellen,  34. 
Courtis  v.  Dennis,  4. 
Courturier  v.  Hastie,  393. 
Covey  v.  Bostwick,  194,  202. 
Covey  v.  Neflf,  174,  182. 
Cowden  v.  Cottgetren,  398. 
Cowdery  v.  Halm,   138. 
Cowell  v.  Edwards,  196. 
Cowen  v.  Culbert,  64. 
Cowles  v.  Peck,  4,  350. 
Cowles  v.  Townsend.  370. 
Cox  v.  Harbranft,  238. 
Cox  v.  Highley,  404. 
Cox  v.  Jeffries,  146. 
Cox  v.  Reed,  195. 
Cozzens  v.  Brick  Co.,  351. 
Craddock   v.   Turner,   65. 
Craft  v.  Kendrick,  377,  384,  396. 
Crafts  v.  Mott,  159. 
Craig  v.  Craig,  175,  194. 
Craig  v.  Governor,  332. 
Craig  v.  Parks,  357,  359. 
Cramer  v.   Tittle,   34. 
Crane  v.  Ailing,  294. 
Cranmer  v.  McSworda,   183. 
Cranson  v.  Wilsey,  255. 
Crawford  v.  Beall,  94. 
Crawford  v.  Edison,  381,  391,  393. 
Crawford  v.  Qaulden,  131. 
Crawford  v.  Howard,  :!09. 


Crawford  v.  Richeson,  18,  338. 
Crawford  v.  Sterling,  26. 
Crawford  v.  Turk,  65. 
Craythorne  v.  Swinburne,  7,  10,  165, 

194,  203. 
Cressey  v.  Grerman,  334. 
Crim  v.  Fitch,  395. 
Crimy  v.  Fleming,  132. 
Cripps  v.  Hartnoll,  383,  415,  416. 
Crittenden  v.  Fiske,  348,  352,  354. 
Croft  v.  Bunster,  357. 
Croft  v.  Ins.  Co.,  400. 
Croft  v.  Isham,  355. 
Croft  v.  Moore,  166. 
Crook  v.  Hudson,  260. 
Crooks  v.  Tully,  347,  349. 
Crosby  v.  Wyatt,  117,  173. 
Cross  v.  Petee,  370. 
Cross  v.  Wood,  115. 
Crossley   v.   Stanley,   97. 
Grossman  v.   Woheleben,  46,   47. 
Crouch  v.  State.  431. 
Crown  v.  Commonwealth,  69,  314. 

Crystal  Lake  v.  Hill,  52. 

Culliford   v.    Walser,    73,    229,    405, 
410. 

Cullom  v.  Dolloff,  308,  329,  330. 

Culver  v.  Real  Estate  Co.,  28,  30. 

Cumberland  v.  Pennell,  316. 

Cumberland  Build.  &  Loan  Asso.  v. 
Gibbs,  127. 

Cummings  v.  Hocklege,  180,  195. 

Cummings  v.  Little,  130. 

Cummings  v.  Mugge,  232. 

Cunningham  v.  Clarkson,  406. 

Cunningham  v.  Wrenn,  129. 

Cuppy  v.  Coffman,  27. 

Currier  v.  Baker,  196. 

Currier  v.  Fellows,  198. 

Curtis  v.  Bank,  246. 

Curtis  v.  Brown.  392,  397. 

Curtis  v.  Parks,  194. 

Curtis  v.  United   States.  76. 

Cutler  v.  Dickinson,  00,  299. 

Cutler  v.  Roberts,  51,  52. 


TABLE    OF    CASES. 


335 


Reference  to  Sections. 


D. 


Dahlman  v.  Hammel,  342. 

Dair  v.  United  States,  50,  315. 

Dale  v.  Commonwealth,  420. 

Daley  v.  Commonwealth,  71. 

Dalton  v.  Barnard,  214. 

Dainb  v.  Hoffman,  111. 

Dane  v.  Gilmer,  321. 

Danforth  v.  Semple,  115. 

Danker  v.  Atwood,  53,  56,  298. 

Daniel  v.  McRea,  200. 

Daniels  v.  Gower,  51. 

Darst  v.  Bates,  390,  397. 

Dart  v.  Sherwood,  58. 

Davenport  v.  Olmstead,  265. 

Davenport  v.  Richards,  252. 

Davidson  v.  Taylor,  412. 

Davies    v.    Humphreys,     176,    192, 

211. 
Davis  v.  Baker,  15. 
Davis  v.  Bauel,  194. 
Davis  v.  Blackwell,  26. 
Davis  v.  Clark,  90,  91. 
Davis  v.  Emerson,  196,  200. 
Davis  v.  Graham,  114. 
Davis  v.  Hoopes,  253. 
Davis  v.  Maynard,  64. 
Davis  v.  Patrick,  377,  382. 
Davis  v.  People,  227. 
Davis  v.  Railroad  Co.,  30. 
Davis  v.  Scott,  404. 
Davis  v.  Stevens,  178. 
Davis  v.  Stokes  County,  190. 
Davis  v.  Stotts,  92,  376. 
Davis  v.  Stout,  114. 
Davis  v.  Walls,  339,  348.  352.  356. 
Davis  Sewing  Mach.  Co.  v.  McGin- 

nis,   362. 
Davis  Sewing  Mach.  Co. v. Richards. 

348. 
Davy  v.  Pendergrass,  117. 
Dawes  v.  Shed,  243. 
Dawson  v.  Bank,  99. 
Dawson  v.  Baum,  219.  231. 
Dawson  v.  Dawson,  258. 


Dawson  v.  Raynes,  276. 

Dawson  v.  State,  313. 

Day  v.  Elmore,  360. 

Day  v.  Ramey,  132. 

Dean  v.  Commonwealth,  437. 

Dean  v.  Newhall,  294. 

Dean  v.  Parker,  406. 

Dean  v.  Walker,  358. 

Dearborn  v.  Sawyer,  353. 

DeardorfF  v.  Foresman,  52. 

Deblois  v.  Earle,  82. 

De  Bolle  v.  Ins.  Co.,  358. 

De  Camp  v.  Bullard,  67. 

Dechard  v.  Edwards,  220. 

Decker  v.  Decker,  244. 

De  Cramer  v.  Anderson,  348. 

Deadham    Bank    v.    Chickering,    71, 

284. 
Dedlick  v.  Doll,  56. 
Dee  v.  Downs,  389. 
Deegan  v.  Deegan,  259,  265,  268. 
Deering  v.  Winchelsea,  3,  209,  260. 
Deering  Harv.  Co.  v.  Peugh,  51. 
De  Greiff  v.  Wilson.  321. 
De  La  Garz  v.  Corolan,  325. 
Deleware,  etc.,  R.  R.  Co.  v.  Iron  Co., 

186. 
Delo  v.  Banks,  74. 
Demelman  v.  Hunt,  408. 
De  Merritt  v.  Bickford,  383. 
Dempsey  v.  Fenno,  262. 
Dempsey  v.  Lipp,  404. 
Denick  v.  Hubbard.   146. 
Denison  v.  Gibson,  61. 
Dennie  v.  Smith,  321,  325. 
Denton  v.  Lytle,  210. 
Denton  v.  Peters,  347. 
Deobold  v.  Oppermann,  252. 
Derry  Bank  v.  Baldwin.  58. 
Detroit  v.  Weber.  69.  301.  302. 
Detroit    Sav.    Bank    v.    Zeiffler,    80. 

285. 
Devers  v.  Howard,  112. 
Devine  v.  State,  414,  429. 
Dewey  v.  Field,  148. 
Dewey  v.  Investment  Co.,  359. 


336 


TABLE    OF    CASES. 


Reference  to  Sections. 


Dewey  v.  Kavanaugh,  333. 

Dewey  v.  McColluni,  112. 

De  Witt  Co.  Bank  v.  Nixon,  347. 

De  Wolf  v.  Rebaud,  383. 

Dexter  v.  Blanchard,  376. 

Dey  v.  Martin,  102. 

Diers  v.  Mallon,  323. 

Dick  v.  Moon,  152. 

Dickerman  v.  Miner,  110. 

Dickerson  v.  Derrickson,  353. 

Dickerson  v.  Heman,  223. 

Dickinson  v.  State,  431. 

Dickson  v.  Condes,  396. 

Dillenback  v.  Dygert,  206. 

Dillon  v.  Russell,  113. 

Dillon  v.  Schofield,  168. 

Dillman  v.  Nadelhoffer,  36,  39,  342, 

359,  360. 
Dinkins  v.  Bailey,  163. 
Dinsmore  v.  Tidhall,  143,  288. 
Disbrough  v.  Bideman,  90. 
Dishneau  v.  Newton,  324. 
Ditmars  v.  Commonwealth,  334. 
Diversy  v.  Moor,  15. 
Dix  v  Mooris,  244. 
Dixon  v.  Ewing,  132. 

Dixon  v.  Spencer,  363. 

Doane  v.  Eldridge,  106. 

Dobbins  v.  Bradley,  79,  356. 

Dobie  v.  Casualty  Co.,  149. 

Dobyns  v.  McGovern,  249. 

Dock   v.    Boyd,    379. 

Dodd  v.  Wilson,  163. 

Dodd  v.  Winn,   196. 

Dodge  v.  McKeehnie,  189. 

Dodge  v.  Myer,  356. 

Dodge  v.  Perkins,  319. 

Dodgson  v.  Henderson,  46,  363. 

Doe  v.  McFarland,  245. 

Doe  v.  Tuttle,  121. 

Doll  v.  Crume,  112. 

Donavan  v.  Cornell,  404. 

Donley  v.  Camp,  349. 

Donoplian  v.  State,  430. 

Donnell  Manf.  Co.  v.  Jones,  56,  57 

Don  Yook  v.  Mill  Co.,  387. 


Doolittle  v.  Dwight,  180,  187. 

Doorley  v.  Lumber  Co.,  51. 

Doran  v.  Cohen,  217. 

Doran  v.  Davis,  188. 

Doremus  v.  Seldon,  187. 

Dorrington  v.  Minnick,  182. 

Dorsey  v.  Wyman,  173. 

Dorsheimer  v.   Bucher,   152. 

Doud  v.  Walker,  77. 

Douglas  v.  Day,  259. 

Douglas  County  v.  Bardo,  54. 

Douglass  v.  Howland,  348,  355. 

Douglass  v.  Kessler,  260. 

Douglass  v.  Mayor,  244. 

Douglass  v.  Reynolds,  45,  354,  356, 
356. 

Dover  v.  Robinson,  106. 

Dover  v.  Twombly,  70,  305. 

Downer  v.  Dana,  144. 

Downey  v.  Hinchman,  385,  386. 

Downing  v.  Funk,  341. 

Downing  v.  Linville,  153. 

Dows  v.  Sweet,  390. 

Drake  v.  Flewellen,  380. 

Drake  v.  Sherman,  97. 

Drakeley  v.  Gregg,  114. 

Drane  v.  Baylies,  246. 

Draper  v.  Romeyn,  48. 

Draper  v.  Snow,  342. 

Draper  v.  Wild,  120. 

Draper  v.  Wood,  103,  109. 

Drescher  v.  Fulham,  171. 

Dressier  v.  Davis,  227. 

Drew  v.  Lockett,  152. 

Driskell  v.  Mateer,  147. 

Drummond  v.  Preston,  321,  356. 

Drummond  v.  Yagor,  194. 

Drury  v.  Defontaine,  351. 

Dry  v.  Davy,  79. 

Dry  Goods  Co.  v.  Yearont,  356. 

Dubois  v.  Mason,  17. 
Dubuque   First   Nat.    Bank   v.   Car- 
penter, 357. 
Ducker  v.  Rapp,  81,  113. 
Dufan  v.  Wright.  82. 
Dugger  ▼.  Wright,  247. 


TABLE    OF    CASES. 
Reference  to  Sections. 


337 


Dugins  v.  Edwards,  404. 
Duke  v.  State,  431. 
Duncan  v.  Hodge,  416. 
Duncan  v.  Tindall,  411. 
Dunlop  v.  Foster,  168,  207. 
Dunn  v.   Garrett,  51. 
Dunn  v.  Slee,  120. 
Dunn  v.  Wade,  210. 
Dunn  v.  West,  382,  383. 
Dupee  v.   Blake,   116. 
Durand  v.  Truesdell,  163. 
Durbin  v.  Kuney,  194,  211. 
Durkel  v.  People,  30. 
Dwelling   House   Ins.   Co.   v.    John- 
ston, 88. 
Dyott  v.  Dean,  404. 


E. 


Easterly  v.   Barber,  210. 

Eastern,  etc.,  R.  R.  Co.  v.  Cochrane, 

282. 
Eastern  R.  R.  Co.  v.  Loring,  286. 
Eastman  v.   Foster,   151. 
Eastman  v.  Plumer,  94,  96. 
Easton  v.  Ormsby,  131,  216. 
Eastwood  v.  Kenyon,  374,  386,  395. 
Eaton  v.  Foster,  350. 
Eaton  v.  Harth,  321. 
Eaton  v.  Lambert,  163,  186. 
Eberhart  v.  Page,  347. 
Eddy  v.  Heath.  6. 
Eddy  v.  Kincaid,  305. 
Eddy  v.  Roberts,  386. 
Edelon  v.  White,  210. 
Edgerly  v.  Lawson,  357. 
Edwards  v.  Sheahaw,  166,   198. 
Eickhoff  v.  Eickenbary,  134. 
Elbert  v.  Jacoby,  204. 
Elder  v.  Elder,   190. 
Elder  v.  Warfield,  374. 
Elevator  Co.  v.  Railroad  Co.,  28. 
Elkin  v.  People,  328. 
Ellesmere  Brewing  Co.  v.  Cooper,  3, 

77,  103,  194,  197,  205. 
Ellicott  v.  Nichols,  167,  190,  371. 


Filing  v.  Vanderlyn,  341. 

Ellis  v.  Adderton,  63. 

Ellis  v.  Fisher,  224. 

Ellis  v.  Johnson,  11. 

Ellis  v.  Wilmot,  92. 

Ellison  v.  Jackson,  381. 

Ellison  v.  State,  419. 

Ellsworth  v.  Brewer,  16. 

Ellsworth  v.  Harmon,  82,  357. 

Elton  v.  Johnson,  43. 

Elwood  v.  Deifendorf,  159. 

Ely  v.  Bibb,  359. 

Emerson  v.  Slater,  382,  383,  391. 

Emery  v.  Baltz,   88. 

Emmons  v.  Gordon,  244,  245. 

Endrews  v.  Ent,  213. 

Engles  v.  Ins.  Co,.  285. 

English  v.  Landon,  46,  114,  363. 

Ennis  v.  Smith,  260. 

Eno  v.  Crooke,   163. 

Enright  v.  Falvey,  143. 

Erie  County  Sav.  Bank  v.  Coit,  37. 

Erwin  v.  Downs,  365,  366. 

Erwin  v.  Lambon,  349. 

Eshleman  v.   Bolenires,  209. 

Essex  Chosen  Freeholders  v.  Linda- 
ley,  189. 

Estep  v.  Lacy,  420. 

Evans  v.  Daugherty,  51. 

Evans  v.  Graden,   138. 

Evans  v.  Keeland,   126. 

Evans  v.  McCormick,  348. 

Evansville  Nat.  Bank  v.  Kaufman, 
340,  357. 

Evers  v.  Sager,  226. 

Everson  v.  Gere,  357. 

Ex  parte  Kerwin,  56. 

Ex  parte  McDonald,  418,  420. 

Ex  parte  Snowden.  211. 

Ex  parte  Yates,  110. 

Exter  Bank  v.  Rogers,  72,  282. 

Eyre  v.  Everett,  170,  193. 


Fairlie  v.   Denton,   397. 
Faires  v.  Cockerell,   173. 


338 


TABLE    OF    CASES. 


Reference  to  Sections. 


Fales  v.  Filley,  52. 

Fall  v.  Youmans,  359. 

Fallerin  v.  Valentine,  121. 

Farlie  v.  Lawson,  74. 

Farmer  v.  Russell,  38. 

Farmers'  Bank  v.  Evans,  77. 

Farmers',  etc.,  Bank  v.  Braden,  141, 

292. 
Farmers'   Nat.    Bank   v.    Snodgrass, 

208. 
Farmington  v.   Hobert,   358. 
Farnum  v.  Blackstone,  28. 
Farrar    v.    United    States,    74,    260, 

276,  302. 
Father     Matthew     Soc.    v.     Fitzwil- 

liams,  61. 
Faulkner  v.  Gilbert,  341. 
Faurot  v.  Gates,  19(3,  197. 
Faurote  v.  State,  79. 
Favorite  v.  Stidham,  36. 
Fawcett  v.  Freshwater,  46. 
Fay  v.  Edministon,  321. 
Fay  v.  Smith,   107. 
Fay  v.  Taylor,  261. 
Fay  v.  Tower,  114. 
Fears  v.  Story,  377,  392,  396. 
Fearle  v.  Dillard,   144. 
Fellows  v.  Prentiss,  129. 
Felton  v.  Bissel,   194. 
Fernan  v.  Butcher,  215. 
Ferrell  v.  Maxwell,  382,  383. 
Ferry  v.  Burchard,  54. 
Ferst  v.  Blackwell,  341,  348,  352. 
Fetrow  v.  Wiseman,  24. 
Fewlass  v.  Keisham,  306. 
Fidelity,  etc.,  Co.  v.  Lawlor,  382. 
Fidler  v.  Hershy,  146. 
Field  v.   Brokaw,   134. 
Field  v.  Burr  Brewing  Co.,  30. 
Field  v.  Holland,  97. 
Field  v.  Newspaper  Co.,  17. 
Field  v.   Maish,   348. 
Field  v.   Wallace,   333. 
Feirson  v.  Williams.  93. 
Filon  v.  Brewine  Co.,  28. 
Findley  v.  Btu  I     95. 


Findley  v.   Findley,   261. 
Finney  v.  Condon,  77. 
Firestone  v.  Rice,  323. 
First  Nat.  Bank  v.  Bank,  336. 
First  Nat.  Bank  v.  Finck,  21. 
First  Nat.  Bank  v.  Gerke,  66,  67,  72. 
First  Nat.  Bank  v.  Goodman,  100. 
First  Nat.  Bank  v.  Leavitt,  121,  122. 
First    Nat.    Bank   v.    Parsons,    114, 

130,  134. 
First  Nat.  Bank  v.  Whitman,  118. 
First  Nat.  Bank  v.  Winchester,  30, 

35. 
Fischer  v.  Gaither,   196,  197. 
Fish  v.  Glover,  145. 
Fish  v.  Hutchinson,  39. 
Fisher  v.  Fallows,  406. 
Fisher  v.  Shattuck,  136. 
Fisk   v.    Stone,   362. 
Fitch   v.    State,   431. 
Fitzgerald     v.    Morrisey,     377,    381, 

392,  393,  396. 
Flack  v.  Neill,  371. 
Flagg  v.  Giltmaker,  11. 
Fleece  v.  State,  431. 
Fleenor  v.  State,  434. 
Flentham  v.  Steward,  348. 
Fletcher  v.  Austin,  52. 
Fletcher  v.  Grover,  22,  198. 
Fletcher  v.   Jackson,   187,   196,  200r 

201. 
Flint  v.  Land  Co.,  387. 
Flynn  v.  Ins.  Co.,  358. 
Flynn  v.  Mudd,   119,   171. 
Foerderer  v.  Moore,  362,  364. 
Fogarty  v.  Finlan,  336. 
Follansbee  v.  Johnson,  12. 
Fonda  v.  Van  Home,  24. 
Fond  du  Lac  v.  Moore,  27. 
Foote  v.  Brown,  349. 
Forbes  v.  Harrington,  260. 
Forbes  v.  McHugh,  256. 
Ford  v.  Keith.  178,  185. 
Ford  v.  Williams,  219,  231. 
Forest's  Oil  Co.'s  Appeal,  158. 
Forrester  v.  Steele,  25,  259. 


TABLE    OL<"    CASKS. 

Reference  to  Sections, 


339 


Forrester  v.  Vason,  264. 

Fort  Wayne,  etc.,  Co.  v.  Deaue,  61. 

Foster  v.  State,  431. 

Foster  v.  Wise.  247. 

Fourth  Nat.  Bank  v.  Mayer,  171. 

Fowler  v.  Brooks,  35,  46,  89,  118. 

Fowler  v.  Strickland,  186. 

Fox  v.  McCord,  71. 

Fox   v.   Parker,   116. 

Foxworth  v.  Bullock,  92. 

Francis  v.  Northeote,  258. 

Frank  v.  Taylor,   152. 

Franklin  v.  Thurber,  408. 

Franklin  Bank  v.  Cooper,  140,   141, 

287,  288. 
Franklin  Bank  v.  Stevens,  140,  288. 
Fraser   v.   Little,   74. 
Freakley   v.   Fox,   251. 
Frederick  v.  Moore,  262. 
Freeholders  v.  Wilson,  328. 
Freeman  v.  Berkey,  112. 
Freeman  v.  Brewster,  267. 
Freeman  v.  Cherry,  206. 
Freeman  v.  Creech,  217. 
Freese  v.  Brownell,   185. 
French  v.  Dauchy,  271. 
French  v.  Marsh,  359,  360. 
Frendenstein  v.  McNier,  322. 
Frevert  v.  Henry,   163,   178. 
Friberg  v.  Donovan,  168. 
Fridge  v.  State,  266. 
Frink  v.  Express  Co.,   183,  319. 
Frink   v.   Peabody,  208. 
Fritch  v.  Bank,  1. 
Frith  v.  Sprague,  190. 
Frost  v.  Carter,  6. 
Frost  v.  Mixsell,  98. 
Frothingham  v.  Haley,  6. 
Frownfelter  v.  State,  307,  337. 
Fuller  v.  Leonard,  15. 
Fuller  v.  Morris,  298. 
Fuller  v.  Scott,  41,  341,  347. 
Fuller  v.  Tomlinson,  364. 
Fullerton  v.  Sturges,  57. 
Fulman  v.  Seitz,  362. 
Fulton  v.  Matthews,  46. 


Fulton  v.  State,  419. 
Furbish  v.  Goodman,  392. 
Furst  v.  Black,  348,  353. 
Fuselier  v.  Babeneau,  198. 
Fuaz  v.  Trager,  223. 


G. 


Gage  v.   Bank,   353. 

Galbraith  v.  Fullerton,  114,  115. 

Gale  v.  Harp,  381. 

Gallagher  v.  People,  423. 

Galson  v.  Brand,  3,  104. 

Gamble  v.   Cuneo,   67. 

Gammell  v.  Parramore,  353. 

Gandy  v.  Gandy,  12. 

Gannard  v.  Eslava,  160. 

Gans  v.  Carter,  34. 

Garber  v.  Commonwealth,  251. 

Gardiner  v.   Harback,    100. 

Gardner  v.  Lloyd,  348. 

Gardner  v.  Miller,  252. 

Gardner  v.  Walsh,   110. 

Gardner  v.  Watson,  119,  228,  256. 

Garibaldi  v.  Cagnoni,  405. 

Garrett  v.  Reese,  259. 

Garvin  v.  Garvin,   163. 

Gass  v.  Smith,  131,  216. 

Cass  v.  Williams,  215,  220. 

Gates  v.  Hughes,  21. 

Gates  v.  McKee,  354.  355. 

Gaussen  v.  United  States,  312. 

Gay  v.  Hultz,  77. 

Gay  v.  Murphy,  54. 

Gay  v.  Ward.  367,  36S. 

General  Steam  Nav.  Co.  v.  Roltz,  67, 

103,  138. 
George  v.  Andrews.   11. 
Gerber  v.  Sharp,  58,  163. 
German  Bank  v.  Auth,  80,  285,  316. 
German  Sav.  Bank  v.  Drake.  348. 
German  Sav.  Bank  v.  Fritz,  103. 
German    Sav.    Bank   v.    Roofing   Co., 

34S. 
German  Sav.  Inst.  v.  Vahle,  123. 


340 


T-LBLE    OF    CAiLS. 
Reference  to  Sections. 


Gettig  v.  Sehantz,  359,  360. 
Gibbs  v.  Blanehard,  399. 
Gibbs  v.  Johnson,  129. 
Gibson   v.   Farley,   2-16. 
Gibson  v.  Mitchell,  201. 
Gibson  v.  Ogden,  120. 
Gibson  v.   Patterson,   32. 
Gibson  v.  Robinson,  2-13. 
Gibson  v.  Shehan,  20S. 
Gibson  v.  United  States,  314. 
Gieseke  v.  Johnson,  183,  186. 
Gilbank  v.   Stephenson,  27. 
Gilbert  v.  Adams,   152. 
Gilbert  v.  Henck,  4, 
Gilbert  v.  Xeely,   157. 
Gilbert  v.  Vail,  6. 
Gilbert  v.  Wiman,  230. 
Giles  v.  Brown,  242. 
Gillen  v.  Peters,  20. 
Gillet  v.  Wiley,  259,  265. 
Gillespie  v.  See,  264. 
Gillespie  v.   Torrance,   144, 
Gillinan  v.  Strong.  321. 
Gillingham  v.  Boardman,  341. 
Gilmer  v.   Baker.   255. 
Glasgow  v.  State.  423. 

Glasscock  v.  Hamilton.  133,  202. 

Glenn  v.  Lehnen.  342,  38S. 

Glenn  v.  Magac,  115. 

Globe  Bank  v.   Small,  349. 

Globe  Printing  Co.  v.  Bickle,  348. 

Glyn  v.   Hertel,  362. 

Godden  v.  Pierson,  372. 

Goetz  v.   Foos,   382.   383. 

Gold  v.  Johnson.  224. 

Golsen  v.  Brand.  203. 

Goltra  v.  People,   253. 

Good  v.  Martin.   347. 

Goodall  v.  Wentworth.  22. 

Goodkin  v.  Hoit,  258. 

Goodloe  v.  Clay.  208. 

Goodwin  v.  Simonson,  146. 

Goodwin  v.  State,  303. 

Goodyear    Dental    Vulcanite    Co.    v, 
Bacon,   52,    54. 

Gordan  v.  Calvert.  85. 


Gordon  v.  Rixey,  202. 
Gorgan  v.  School  Diat.,  84. 
Gorhani  v.  Keyes,  38. 
Goss  v.  Gibson,  212. 
Gosserand  v.  LaCour,  133. 
Gould  v.  Gould,  176,  187. 
Gourdin  v.  Trenholm,  198, 
Governor  v.  Dodd,  329. 
Governor  v.  Edwards,  326. 
Governor  v.  Fay,  413. 
Governor  v.  Mentfort,  328. 
Governor  v.  Ridgway,  329. 
Governor  v.  Wise,  325. 
Gowing  v.   Gowgill,   334. 
Gradle  v.  Hoffm:  n,  292. 
Grady  v.  Hughes..  258. 
Graeter  v.  DeWolf,  74,  224. 
Graff  v.  Kahn,  144. 
Grafton  Bank  v.  Kart,  171. 
Graham  v.  Marks,  32. 
Graham  v.  Resle,   146. 

Graham  v.  Selover,  90. 

Grant  v.   Smith.   111. 

Grant  v.   Wolf,   398. 

Grasser   v.    Rogers.    97. 

Graves  v.  Bank.  88,  126,  287. 

Graves  v.  Bulkeley,  32  L 

Graves  v.  Smith,  200. 

Gray  v.  Bennett,  6. 

Gray  v.  Commonwealth,  423. 

Gray  v.  Cook,  407. 

Gray  v.  Kerr.  233. 

Gray  v.  Perkins,   .20. 

Gray  v.  School  Dist,  138. 

Gray  v.  State,  60. 

Grayson's  Appeal,  113. 

Great  Falls  v.  Hanks,  306. 

Gregg  v.  Currier,  246. 

Gregory        Cameron.  52. 

Gregory   v.   Leigh,   246. 

Greely  v.   Dow,   114. 

Green  v.  Burton,  392. 

Green  v.  Creswell.  382.  383,  406. 

Green   v.   Kindy.   52.   54. 

Green   v.    Raftes,    224. 

Green  v.  Shepherd,  36. 


TABLE    OF    CASKS. 


£41 


Reference  to  Sections. 


(ireen  v.   Wardwell,  304. 

Green  v.  Young,  85,  306,  345 

Greene  v.  Bates,  122. 

Greene  v.  Dodge,  353. 

Green  Bay,  etc.,  R.  R.  Co.  v.  Steam- 
boat Co.,  31. 

Green  County  v.  Wilhite,  56. 

Greenville  v.  Ormand, 

Greenwell  v.  Commonwealth,  325. 

Greenwood  v.  Francis,  113. 

Gridley  v.   Capen,   76,  339. 

Grier  v.  Flitcraft,  113,  134,  170,  171. 

Griffin  v.  Hoag,  392. 

Griffin  v.  Moore,  412. 

Griffith  v.  Sitgreaves,  32,  136. 

Grigrich  v.  People,  411. 

Grimes  v.  Sherman,  189. 

Grimm  v.  School  Dist.,  52. 

Gring's  Appeal,  338. 

Griswold  v.  Frink,  244. 

Grocers'  Bank  v.  Kingman,  72,  286, 
293,  298. 

Grommes  v.  Trust  Co.,  111. 

Gross  v.  Bouton,  226. 

Gross  v.  Davis,  197,  200,  202. 

Gross  v.  Jackson,   196. 

G rover  v.  Dubois,  394. 

Guild  v.  Butler,  92,  130. 

Guild  v.  Conrad,  382. 

Gunn  v.  Barry,  161. 

Gustine  v.  Bank,  95. 

Gwynne  v.  Burrell,  69,  307,  337. 

H. 

Habershaw  v.  Sears,  325. 
Haberstro  v.  Belford,  405. 
Hackett  v.  Watts,  152. 
Hadley  v.  Ewings,  405. 
Hadley   v.    Murray,    194. 
Hagadorn  v.  Stronach,  381. 
Hagar  v.  Mounts,  179. 
Hagey  v.  Hill,  116. 
Haight  v.  Brisbin,  242. 
Haines  v.  Dement,  109. 
Hale  v.   Dreeser,   341. 


Hale  v.  Wetmore,  157. 

Hall  v.  Alford,  385,  391. 

Hall  v.  Creswell,  164. 

Hall  v.  Farmer,  347. 

Hall  v.  Hall,  22,  167,  176. 

Hall   v.   Hoxsov,    132. 

Hall  v.  Long,  20,  21. 

Hall  v.  Nash,  182. 

Hall  v.  Oberhellman,  14. 

Hall   v.   Ochs,   345. 

Hall  v.  Parker,  49,  52. 

Hall  v.  Smith,  177. 

Hall  v.  White,  405. 

Hall   v.   Williams,   232. 

Halliday  v.  Hart,   114. 

Hallock  v.  Yankey,  113,  133. 

Halshutt  v.  Pegram,   190. 

Ham  v.  Grieve,  26,  140,  141. 

Hamaker   v.   Eberly,   34. 

Hamblen  v.  Knight,  100. 

Hamlin  v.  Drummond,  385. 

Hamilton  v.  Bell,  213,  215. 

Hamilton  v.  Dunblee,  412. 

Hamilton  v.  Hooper,  110. 

Hamilton  v.  Johnston,  10,  169. 

Hamilton  v.  Watson,  126,  140. 

Hammon  v.  State,  431. 

Hammond  v.  Bearsley,  262. 

Hammond  v.  Johnson,  339. 

Hampton  v.  Phipps,  12,  151. 

Hampshire  Bank  v.  Phillings,  224. 

Hance  v.  Miller,  349. 

Hancock  v.  Hazzard,  316. 

Handley  v.  Barrows,   102. 

Handley  v.  Heflin,  201. 

Hand  Manf.  Co.  v.  Marks,  138,  308. 

Haney  v.  People,  32. 

Hanley  v.  Filbert,  59. 

Hanna  v.  Petroleum  Co.,  240. 

Hanner  v.  Douglass,   163. 

Hanson  v.  Rounsvaille,  97. 

Hansford  v.  Perrin,  214. 

Hanson  v.  Crowley,   109. 

Harbin  v.  State,  431,  436. 

Harbord  v.  Cooper,   357. 

Harbough  v.  Albertson,  62. 


'342 


TABLE    OF    CASKS. 


Reference  to  Sections. 


Hardaway  v.  Hinson,  30. 

Hardin  v.  Carrico,  332. 

Harding  v.  Tifft,  96. 

Hare  v.  Grant,  188. 

Hare  v.   Marsh,   227. 

Hargreaves  v.  Lewis,  185. 

Hargreaves    v.   Parsons,     374,     385, 

386. 
Hargreaves  v.  Smee,   356. 
Harker  v.  Grick,  251,  252. 
Harley  v.  Stapleton,  177. 
Harms  v.  McCormick,  358. 
Harp  v.  Osgood,  416. 
Harper  v.  Fairley,  90. 
Harper  v.  McVeigh,  174. 
Harper  v.  Tahourdin,  27. 
Harris  v.  Brooks,  51. 
Harris  v.  Fawcett,  346,  368. 
Harris   v.   Frank,   163. 
Harris  v.  Furgeson,  196. 
Harris  v.  Harris,  41. 
Harris  v.  Hayes,  408. 
Harris  v.  Huntbach,  380. 
Harris  v.  Taylor,  240. 
Harris  v.  Vandbly,  341. 
Harris  v.  Warner,  165. 
Harrisburg  v.  Guiles,  292. 
Harrison  v.  Clark,  243. 
Harrison    v.    Lane,    3. 
Harrison  v.  Wilkin,  59. 
Harsh  v.  Klepper,  107. 
Harsinger  v.  Newman,  390. 
Hart  v.  Clouser,   107. 
Hart  v.  Poor  Guardians,  317. 
Hart  v.  Strutting,  261. 
Hart  v.  United  States,  314. 
Harter  v.  Moore,   179. 
Hartington  v.  Dennie,  414,  429. 
Hartley  v.  Colquitt,  426. 
Hartwell    v.   Smith.    168. 
Hartzell   v.   Commonwealth,  244. 
Harvey   v.    Bank,    356,   363. 
Harvey  v.  Drew,  200. 
TTarvey  v.  Laurie,  366. 
TIarvis  v.  State,  426. 
Elarwood   v.   ELiersted,  42. 


Haseltine  v.  Guild,  189. 

Haskins  v.  Lombard,  52. 

Hatch  v.   Peyton,   22. 

Hately  v.  Pike,  17. 

Hatfield  v.  Merod,  160,  193 

Haubert  v.  Kraus,  123. 

Hauglesben  v.  People,  434, 

Haven  v.   Foley,   151. 

Haven  v.  Lathene,  317. 

Havenstein  v.  Gillespie,  266 

Haverly  v.  Mercer,  393. 

Hawes  v.  Marchant,  32. 

Hawker  v.  Moore,  338. 

Hawkes  v.  Phillips,  347. 

Hawkins  v.  Kimball,  244 

Hayes  v.  Cooper,  144. 

Hayes  v.  Ford,  212. 

Hayes  v.  Josephi,  139. 

Hayes  v.  Wells,   119,  363. 

Hayden  v.  Cabot,  183,  184. 

Hazelton  v.  Douglas.  259. 

Hazelton  v.  Valentine,  177, 

Head  v.   Levy,  334. 

Heady  v.   State,   253. 

Heard  v.  Lodge,  65,  243. 

Hearn  v.  Heath,  182,  183. 

Heath   v.   Bank,   58. 

Hefferlin  v.  Kieger,  146. 

Heidenheimer  v.  Brent,  311,  325. 

Helms  v.  Society,  78. 

Helt  v.  Whittier.  228. 

Henderson  v.  Coover,  310. 

Hendricks  v.  Robinson,  343. 

Henry  v.   Coats,   110. 

Herman  v.  Jeuchner.  416. 

Henns  Brewing  Co.  v.  Flannery,  30, 

31. 
Henricus  v.  Engbert,  112,  358. 
Hern  v.  Nichols,  315. 
Herrick   v.   Johnson,   52. 
Herrick  v.  Swartwout,  224. 
Herring  v.  Hoppock,  219,  231. 
Hersry  v.  Marty,  324. 
Hetfield  v.  Down.  309. 
Hetherington  v.  Ilixon,  191. 
He-.:-'   Estati      n,   166. 


TABLE    OF    CASES. 


343 


Reference  to  Sections. 


Heustis  v.  Rivers,  407. 
Hibernian  Bank  v.  Lacoinbe,  212. 
Hichbone  v.  Fletcher,  194. 
Hickcrson  v.  Price,  247. 
Hickman  v.  McCurdy,  198. 
Hicks  v.  Chouteau,  27. 
Higgins  v.  State,  263. 
Hightower  v.   Ogletree,   146. 
Hightown  v.  Moore,  85. 
Hildreth  v.  State,  419. 
Hill  v.  Dunham,  49. 
Hill  v.  Wright,  11. 
Hilleburton  v.  Carter,  212. 
Hillegas  v.  Stephenson,  206. 
Himrod  v.  Baugh,  144. 
Hinckley  v.  Kreitz,  73,  225,  229. 
Hinds   v.   Ingham,   89. 
Hinely  v.  Magoritz,  24. 
Hines  v.  Mullens.  266. 
Hinton  v.  Odenheimer,  406. 
Hirsch  v.  Carpet  Co.,  341,  384. 
Hobbard   v.    Hart,    125. 
Hodge    v.    People,    334. 
Hodges  v.  Gervin,  232. 
Hodges  v.  State,  477. 
Hodgson  v.  Baldwin,  202. 
Hodgson  v.  Shaw;  130,  153,  178. 
Hoes  v.  Crouch,  130. 
Hoey  v.  Jarman,   66. 
Hoffman  v.  People,  244. 
Hoggart  v.  Thomas,  382. 
Hogshead  v.  Williams,  114. 
Hogue  v.   Davis,   206,  210. 
Hoil  v.  Bailey,  395. 
Holden  v.  Curry,  65. 
Holden  v.  Jones,  306. 
Hollandworth  v.  Commonwealth,  27. 
Holliday  v.  People,  418,  420. 
Hollier  v.  Eyre,  170. 
Holliman  v.  Carroll.  324. 
Hollinan  v.  Rogers,  178. 
Hollinsbee  v.  Ritchey,   173. 
Hollister  v.  Davis,  144. 
Holker  v.  Hennessy.  323. 
Holm  v.  Jamieson,  351. 
Holmes  v.  Chadbourne,  405. 


Holmes  v.  Day,   168. 

Holmes  v.  Knight,  382. 

Holmes  v.  Rhodes,  183. 

Holmes  v.  Standard  Oil  Co.,  73,  327. 

Holmes  v.  State,  53. 

Holmes  v.  Ward,  183. 

Holmes  v.  Williams,  361,  364. 

Holmes  Savings  Bank  v.  Traube,  79. 

Holt  v.  McLean,  320. 

Holt  Co.  v.  Scott,  304. 

Homan  x.   Brinckerhoof,  221. 

Home   v.    Farrington,    127. 

Home  Ins.  Co.  v.  Gow,  292. 

Home  Ins.  Co.  v.  Holway,  60,  288. 

Home  Nat.  Bank  v.  Waterman,  113. 

Homes  v.  Bank,  151. 

Homes  v.  Weed,  11. 

Hondell  v.  Carroll,  194. 

Hood  v.  Hood,  242,  244. 

Hood  v.  Mathis,  226,  228. 

Hook  v.  Richeson,  338. 

Hooker  v.  Russell,  392,  393. 

Hooper  v.  Hooper,  211,  245,  339,  356, 

371. 
Hooper  v.  Pike,  35. 
Hoover  v.  Epler.  157,  191. 
Hoover   v.   Mowser,   208. 
Hopkins  v.  Farwell,  178. 
Hopkins  v.   Leek,   347. 
Hopewell  v.  McGrew,  66,  222. 
Horan  v.  People,  324. 
Horner  v.  Lyman,  227 
Horrier  v.  Dipple,  24. 
Horris  v.  Brooks,  147. 
Hortsell  v.  State,  431. 
Hosea  v.  Rowley,   121. 
Hotchkiss  v.  Barnes^  354. 
Houck  v.  Graham,  77,   194. 
Hough  v.  Ins.  Co.,   155. 
Houghton  v.  Freeland.  316. 
Houghton  v.  Milburn,  358. 
Housh  v.  People,  65.  243. 
Houston  v.  Braden,  99. 
Howard  v.  Fletcher,  93. 
Howard   v.   Smith.  351. 
Howard  Co.  v.  Hill,  66,  67,  285,  311. 


344 


TABLE    OF    CASES. 


Reference  to  Sections. 


Howe  v.  Nichols,  45,  348,  352. 

Howe  v.  Peabody,  257. 

Howe  v.  Taggart,  43. 

Howe  v.  Ward,  35. 

Howell  v.  Field,  397. 

Howell  v.  Parsons,  298. 

Howes  v.  O'Connor,  254. 

Hubbard   v.    Elden,    324. 

Hubbard  v.  Gurney,   122,  171. 

Hubbard  v.  Haley,  348,  353,  364. 

Hubbard  v.   Switzer,   333. 

Hubbell  v.  Carpenter,  132. 

Huckabee  v.  May,  358. 

Hudson  v.  Winslow,  60. 

Huey  v.  Pinney,   145. 

Huff  v.  Cole,  103. 

Huggins  v.   People,  411,  431. 

Hughes  v.  Littlefield.  39. 

Hughes  v.   People,   330. 

Hughes  v.  State,  414. 

Hughlett  v.  Hughlett,  246. 

Hulet  v.  Soullard,  178. 

Hull  v.  Parker,  129. 

Humboldt,  etc.,  Society  v.  Wenner- 

hold,  75. 
Hun  v.  Nichols,  57. 
Hungerford  v.  O'Brien,  349. 
Hunt  v.  Bridgham,  90. 
Hunt  v.  Ford,  382. 
Hunt  v.  Gardner,   111. 
Hunt  v.  Postlewait,  48. 
Hunt  v.  Eoberts,  88. 
Hunt  v.  State,  76,  318. 
Hunter  v.  Clark,  114,  131. 
Hunter  v.  Robertson,  90. 
Hunter  v.  United  States,  338. 
Huntington  v.  Knox,  358. 
Huntley  v.  Sanderson,  11. 
Hurd  v.  Little,  123. 
Hurley  v.  Furey,  145,  149. 
Huse  v.  Ames,  180,  195. 
Hutchinson  v.  Roberts,  3. 
Hutchinson    v.    Shrout,   260. 
Hutchinson  v.  Woodwell,  128. 
Hutchinson  v.  Wright,  116. 
Huyler  v.  Atwood,  11. 


Hyatt  v.  Bonham,  385. 

Hyde  v.  Tracy,  202. 

Hyer  v.  Smith,  411. 

Hyland  v.  Habich,  87,  306,  346,  368. 

Hvman  -    Dooley,  348. 


Ide  v.   Churchill,   133. 
Imming  v.  Fiedler,   145,  146. 
Independent    Sekool    Dist.   v.  Hub- 
bard, 292. 
Ingersoll  v.  Roe,  32. 
Ingersoll  v.  Seatoft,  321. 
Ingles  v.  Sutliff,  46,  47,  114 
Ingraham  v.  Baldwin,  25. 
Ingram  v.  State,  424,  426. 
Inhabitants  v.  Bell,  69. 
Inhabitants  v.  Wilson,  324. 
In  re  Arcedeckna,  198,  20B 
In  re  Babcock,  15,  145. 
In  re  Consalus,  252. 
In  re  Church,  157. 
In  re  Dryer,  281. 
In  re  Ennis,   203. 
In  re  Herrick's  Minors,  276. 
In  re  Hewitt,  156. 
In  re  Loventhal,  281. 
In  re  Merwin,  281. 
In  re  Silvester,  368. 
In  re  Yeager,  281. 
Ins.  Co.  v.  Colt,  400. 
Ins.  Co.  v.  Hanford,  11,  12,  13. 
Irby  v.  Livingston,  338. 
Iredel  v.  Barbee,  266. 
Irick  v.  Black,  145. 
Irish  v.  Cutter,  347. 
Irvine  v.  Adams,  171. 
Irwin  v.  Backus,  65,  259. 
Isett  v.  Hoge,  4. 
Ishmael  v.  State,  419  . 
Ives  v.  Hulce,  226. 


Jack    v.    People,    27. 
1    Jack  v.  Sinsheimer,  351,  356. 


TABLE    OF    CASES. 


345 


Reference  to  Sections. 


Jackson  v.  Benson,   128. 
Jackson  v.  Hampton,  406. 
Jackson  v.  Jackson,  39,  40,  42    185. 
Jackson  v.  Patrick,  07. 
Jackson  v.  State,  431. 
Jackson  v.  Wilson,  244. 
Jackson  v.  Yandes,  348. 
'  Jacobs  v.  Hill,  65,  71. 
Jacobson  v.  Anderson,  ? 
Jaffray  v.  Brown,  42. 
Jaffray  v.  Crane,  113. 
Jaffray  v.  Smith,  223. 
James  v.  Badger,  12° 
James  v.  Kennedy,  2f 
James  v.  State,  74,  269. 
Jamison  v.  Cosby,  200. 
Jarvis  v.  Hyatt,  363. 
Jefferson  v.   Stagle,   391. 
Jeffries  v.  Lawson,  23. 
Jenderine  v.  Rose,  87. 
Jenkins  v.  Clarkson,  119. 
Jenkins  v.  Daniels,  113. 
Jenkins  v.  Lemonds,  333. 
Jerauld  v.  Trippet,  131  . 
Jewell  v.  Mills,  323,  324. 
Jewett  v.  Comforth,  187. 
Jewett  v.  Whitman,  150 
Jex  v.  Straus,  82,  357 
John  v.  Jones,  207. 
Johnson  v.  Bank,  102 
Johnson  v.  Flint,  228. 
Johnson  v.  Frequay,  247. 
Johnson  v.  Harvey,  200,  201. 
Johnson  v.  Huntington,  217. 
Johnson  v.  Johnson,  54. 
Johnson  v.  May,  67. 
Johnson  v.  Ramsey,  210. 
Johnson   v.  Reed,   228. 
Johnson  v.  Vaughn,  194,  197. 
Johnson  v.  Weatherway,  50,  52 
Johnston  v.  Kimball,  32. 
Joliet,  etc.,  R.  R.  Co.  v.  Healy,  156. 
Jolly  v.  Walker,  381. 
Jones  v.  Ashford,  359. 
Jones  v.   Bacon,   382. 
Jones   v.   Bank,    151. 


Jones  v.  Bangs,  107. 

Jones  v.  Berryhill,  357 

Jones  v.  Blanton,  260. 

Jones  v.  Boyd,  100. 

Jones  v.  Bradford,  166,  199. 

Jones  v.  Crosthwaite,  92,  135   37" 

Jones  v.  Ellis,  408. 

Jones  v.  Foster,  11. 

Jones  v.  Gallatine,  30P 

Jones  v.  Hays,  260. 

Jones  v.  Joyner,  185 

Jones  v.  Keer,  129. 

Jones  v.  Orchard,  415,  416. 

Jones  v.  Sarchett,  116. 

Jones  v.  Savage,  27. 

Jones  v.  Scanland,  304. 

Jones  v.  Shorter,  383. 

Jones  v.  State,  431. 

Jones  v.  Trimble,  176.  "s 

Jones  v.  United  States,  314. 

Jordan  v.  Dobbins,  87,  306,  346,  367, 

368. 
Jordan  v.  Jordan,  51. 
Jordan  v.  Walters,  103. 
Joslin  v.  Car  Spring  Co.,  12. 
Joslyn  v.  Collinson,  36. 
Joslyn  v.  Eastman,  224. 
Joyce  v.  Joyce,  178. 
Judah  v.  Zimmerman,  67,  362. 
Judge  v.  Heydock,  245. 
Judge  v.  Sulloway,  1,  243,  251,  252. 
Jungk  v.  Reed,  365. 


Kadish  v.  Build.  Asso.,  30. 
Kagey  v.  Trustees,  303. 
Kane  v.  Railroad  Co.,  325. 
Kane  v.  Williams,  364. 
Kansas  Mfg.  Co.  v.  Gandy,  42. 
Kassing  v.  Bank,  189. 
Katz  v.  Maessinger,   163. 
Kauffman  v.  Cooper,  112. 
Kauffman  v.  Rowan,  102,  113. 
Kaufman  v.  Wilson,  146. 


346 


TABLE    OF    CASES. 


Reference  to  Sections. 


Kay  v.  Allen,  348. 

Kearns  v.  Montgomery,  4 

Kearsley  v.  Cole,  116. 

Keedle  v.  Flack,  12. 

Keefhauer  v.  Lowe,  427. 

Keel  v.  Larkin,  160,  161. 

Keighler  v.  Savage  Manuf.  Co.,  95. 

Keil  v.  Healey,  24. 

Keith  v.  Henkleman,  233. 

Kellar  v.  Williams,  204. 

Keller  v.  Ashford,  12,  13,  21. 

Kellogg  v.  Kimble,  217. 

Kellogg  v.  Olmstead,  48. 

Kellogg  v.  Scott,  79. 

Kellogg  v.  State.  421. 

Kellum  v.   Clark,  69,  70. 

Kelly  v.   Gordon,   234. 

Kelly  v.  Page,  166,  198. 

Kelly  v.  Sehrupp,  391. 

Kelly  v.  State,  303. 

Kelso  v.  Flaney,  385. 

Kelso  v.  Kelso,  208. 

Kenan  v.  Carr,  407. 

Kendall  v.  Aleshire,  323. 

Kendall  v.  Laurence,  376. 

Kendrick  v.  Forney,  164,  186 

Kendrick  v.  Rice,  188. 

Kennedy  v.  Adams,  408. 

Kennedy  v.  Adickes,  253. 

Keokuk  v.  Love,  152,  157,  164. 

Keokuk  County  State  Bank  v.  Hall, 

135. 
Kernachan  v.  Murray,  345. 
Kerr  v.  Clark,  212. 
Kerr  v.  Moon,  245. 
Kersham  v.  Conklin,  206. 
Kester  v.  Hill,  261. 
Kewannee  v.  Kniper,  314. 
Keyser  v.  Keen,  52. 
Kilbride  v.  Moss,  381. 
Kilgrow  v.  State,  419. 
Kilson  v.  Farwell,  321. 
Kimball  v.  Baker,  77,  362. 
Kimball  v.  Cummins,  177,  371. 
Kimball  v.   Wwoll,  92,  376. 
Kimmel  v.  Lowe,  163,  182,  372. 


Kincaid  v.  Yates,  103. 

Kinchelor  v.  Holmes,  355. 

Kindle  v.  State,  313. 

King  v.  Baldwin,  145,  165,  170. 

King  v.  Baker,  325. 

King  v.  Clark,  427. 

King  v.  Newman,  361. 

King  v.  Nichols,  328. 

King  v.  State,  414,  429. 

King  v.  Summit,  376. 

King  v.  United  States,  337. 

King  County  v.  Ferry,  301,  305,  313. 

Kingsbury  v.  Westgate,  82. 

Kingsbury  v.  Williams,  81. 

Kinney  v.  Ensign,  252. 

Kirby  v.  Landis,  125. 

Kirby  v.  Studbaker,  114. 

Kirkham  v.  Marter,  401. 

Kirkpatrick  v.  Hawk,  130. 

Kirschman  v.  Conklin,  210. 

Kisner  v.  Pullen,  43. 

Kitron  v.  Julian,  70. 

Klein  v.  Currier,  341. 

Klein  v.  Long,  117. 

Klingensmith  v.  Klingensmith,  133, 

145. 
Knapp  v.  Swaney,  112. 
Knickerbocker  v.  Wilcox,  28,  29. 
Knight  v.  Dunsmore,  347. 
Knight  v.   Morrison,    163. 
Knight  v.  Nelson,  231. 
Knowlton  v.  Hersey,  340. 
Knox  v.  Vallandingham,  199. 
Koch  v.  Roth,  97. 
Kock  v.  Block,  185. 
Koenig  v.  Steckel,  409. 
Kohler  v.  Mattage,  182. 
Konitzky  v.  Meyer,  174,  188,  194. 
Koons  v.  Seward,  405. 
Korsmeyer,  etc.,  Co.  v.  McCay,  11& 
Krafta  v  Creighton,  179. 
Kramer  v.  Bank,  189. 
Kramph  v.  Hatz,  2,  4,  339.  \ 

Kroncke  v.  Madseon,  67. 
Kugler  v    Prien,  264. 
Kurtz  v.  Forgner,  54. 


TABLE    OF    CASKS. 


347 


Reference  to  Sections. 


Lackey  v.  Boruff,  40. 

Lackey  v.  Steere,  92. 

Lacy  v.  Loftus,  14. 

Lacy  v.  Stamper,  253. 

Ladd  v.  Board,  126. 

Ladd  v.  Trustees,  301. 

Lafarge  v.  Dillenbach,  95. 

Lafayette  v.  James,  66,  312. 

Lafayette,   etc.,   Asso.   v.   KleinhofT, 

76. 
Lake  v.  Thomas,  57. 
Lamb  v.  Carley,  348. 
Lamb  v.  Morris,  99. 
Lamb  v.  Tucker,  12. 
Lamb  v.  Withrow,  173. 
Lammon  v.  Fensier,  324. 
Lancashire  Ins.  Co.  v.  Callahan,  127. 
Lancaster    First    National   Bank   v. 

Shreiner,  99. 
Lance  v.  Pearce,  388,  398. 
Lanckton  v.  Woleott,  6. 
Lane  v.  Duchac,  356. 
Lane  v.  Westmoreland,  182. 
Lang  v.  Henry.  392. 
Lang  v.  Pike.  228. 
Lang  v.  Seay,  71. 
Langdon  v.  Markle,  146. 
Langdon  v.  Richardson.  388. 
Langford  v.  Perrin,  3,  207. 
Langley  v.  Adams,  226. 
Lansdale  v.  Cox,  194. 
Large  v.  Steer,  233. 
La  Rose  v.  Bank.  87,  88. 
Larson  v.  Armagoe,  355 
Lathrop  v.  Atwood,  182. 
Law  v.  East  India  Co.,  99. 
Lawrence  v.  Beecher.  124. 
Lawrence  v.  McCalmont,  356. 
Lawson  v.  Townes,  355. 
Leak  v.  Covington,  211. 
Learn  v.  Upstill,  381. 
Lee  v.  Bolles.  1. 
Lee  v.  Dick,  66,  355,  356. 
L*«  v.  Hastings,  66. 


Lee  v.  Jones,  140. 

Lee  v.  Newman,  395 

Lee  v.  Stowe,  372. 

Lee  v.  Wisner,  41. 

Lee  v.  Yandell,  92. 

Leeds  v.  Dunn,  103,  356,  363. 

Leeper  v.  Paschal,  210. 

Leggett  v.  Humphrey,  74. 

Leggett  v.  McClelland,  151. 

Leigh  v.  Taylor,  75. 

Leighton  v.  Brown,  319. 

Lehigh    Coal,   etc.    Co.    v.    Blakelee, 

371. 
Leitch  v.  Taylor,  311. 
Leith  v.  Bush,  53. 
Leland  v.  Felton,  252. 
Lemmon  v.  Box,  381. 
Lemmon  v.  Strong,  357. 
Lemmon  v.  Whitmer,  115. 
Lemp  v.  Armegoe,  348,  355. 
Lenox  v.  Prout,  95. 
Lennox   v.   Murphy,   341,   342,    350, 

362. 
Lent  v.  Padelford,  353. 
Lenusse  v,.  Barker,  87. 
Leonard  v.  Gibson,  228. 
Leonard  v.  Vredenburg,  35,  39,  347. 
Leonard  v.  Wilder,  347. 
Leonhard  v.  Bank,  359. 
Lerch  v.  Gallup,  374. 
Letcher  v.  Yantes,  145. 
Levi  v.  Mendell,  348. 
Levick  v.  No- ton,  321. 
Levy  v.  McDonald,  325. 
Lewis  v.  Brehme,  394. 
Lewis  v.  Dwight,  G7,  318. 
Lewis  v.  Commissioners,  51. 
Lewis  v.  Leathy,  232. 
Lewis  v.  Lewis,  1 62. 
Lewiston  v.  Gagne,  51. 
Lexington,  etc.,  R.  R.  Co.  v.  Elwell, 

283,  284,  297. 
Lirhenthaler  v.  Thompson.  152. 
Liddell  v.  Wiswell,  196,  197,  212. 
Li.dderdale    v.    Robinson,    166,    177, 

201. 


348 


TABLE    OF    CASKS. 


Reference  to  Sections. 


Liedenbaeh    v.    Denklespiel,    272. 

Life  Association  v.  Lemke,  282. 

Life  Ins.  Co.  v.  Ecclesine,  404. 

Lime  Rock  Bank  v.  Mallett,  171. 

Linch  v.  Litchfield,  75. 

Lincoln  v.  Hinsey,  347. 

Lindley  v.  State,  244. 

Lininger,  etc.,  Co.  v.  Wheat,  348. 

Linn  County  v.  Farris,  129. 

Lionberger  v.  Kieger,  72,  286,  299. 

Little  v.  Commonwealth,  279. 

Little  v.  Little,  189. 

Littlefield  v.  Littlefield,  90. 

Liverpool  Water  Works  v.  Atkinson, 
284. 

Lloyd  v.  Harper,  30G,  345,  346. 

Lobaugh  v.  Thompson,  92. 

Lockenmeyer  v.  Fogarty,  152. 

Lockwood  v.  Jones,  411. 

Loeb  v.  Barris,  358. 

Locke  v.  McVean,  66,  67. 

Loew  v.  Stocking,  52,  54. 

Logan  v.  Odden,  347. 

Lombard  v.  Cobb,  187. 

Lombard  v.  Maybery,  78. 

London  Assurance  Corporation  v. 
Bold,  83. 

London,  etc.,  Bank  v.  Parrott,  356. 

Long  v.   Seay,  305. 

Long  v.  Templeman,  93. 

Longbridge  v.  Bowland,  154,  157, 
160. 

Lookout  Bank  v.  Anil,  51. 

Lookout  Mountain  R.R.  Co.  v.  Hous- 
ton, 377,  39G. 

Loomis  v.  Brown,  233. 

I/ooney  v.  Hughes,  314. 

IxH>p  v.  Northrup,  243. 

Loop  v.  United  States,  117. 

Loosemore  v.  Radford,  182. 

jopenan  v.  Henderson,  404. 

Lord  v.  Staples,  181. 

Lord  Arlington  v.  Merricke,  70,  284. 

Loring  v.  A  Mine,  263. 

Loring  v.  Bacon,  20!).  266. 

Loring  v.  Morrisi  n,   I  1 1. 


Loughlin  v.  Ferguson,  220. 
Louisiana,  etc.,  R.  R.  Co.  v.  Dillard, 

348. 
Louisville,   etc.,   R.   R.    Co.   v.   Imp. 

R.    R.    Co.,    28. 
Louisville  Trust  Co.  v.  Railroad  Co., 

357. 
Loury  v.  Bank,  372. 
Love  v.  Brown,  114. 
Love  v.  Shiffelin,  27. 
Lovejoy  v.  Murry,  219,  231. 
Love  joy  v.  Whipple,  49. 
Lovell  v.  Adams,  129. 
Low  v.  Blodgett,  163. 
Lowell  v.  Edwards,  198. 
Lowell  v.  Parker,  323. 
Lowenstein  v.  Sorge,  36,  41. 
Lowman  v.  Yates,  114. 
Lowry  v.  Polk  Co.,  317. 
Lowry  v.   State,   260. 
Lucas  v.  Chamberlain,  383. 
Lucas  v.  Donaldson,  258. 
Lucas  v.  Governor,  321. 
Lucas  v.  Owens,  126. 
Lucas  v.  Transfer  Co.,  28. 
Lucas  v.  Tucker,  245. 
Ludgater  v.  Cannell,  271. 
Ludloy  v.  Simond.  77. 
Lueking  v.  Gegg,   185. 
Lumpkins  v.  Mills,  178. 
Lusk  v.  Hopper,  157. 
Lyle  v.  Moore,  114. 
Lyman  v.  Conkey,  310. 
Lyman  v.  Lincoln,  112. 
Lynch  v.  Hancock,  180. 
Lynch  v.  Rotan.  263. 
Lynch  v.  Smyth.   114. 
Lyndon  v.  Miller,  337. 
Lyon  v.  Horner.   325. 
Lyon  v.  Osgood,  251.  252,  253. 
Lyons  v.  State,  431. 

M. 

Macfarland  v.  Hime,  3  f  1 . 
Machado  v.  Ferandez,  194. 


TABLE    OF    CASES. 


34S 


Reference  to  Sections. 


Mackenzie  v.  Scott,  394. 

Mackreal  v.  Taylor,  24. 

Macy  v.  Childress,  382. 

Madison  v.  State,  419. 

Madison,  etc.,  Plank  Road  Co.  v. 
Plank  Road  Co.,  28. 

Magee  v.  Leggett,  158. 

Magee  v.  Ins.  Co.,  285,  287. 

Magruder  v.  Admire,  196. 

Mahaska  Co.  v.  Ingalls,  313. 

Mailing  Union  v.  Graham,  312. 

Maingay  v.  Lewis.  21. 

Mallory  v.  Gillett.  378,  384,  392, 
397. 

Mallory  v.  Lyman,  348. 

Maloney  v.  Nchon,  416,  417. 

Maltby's  Case,  287. 

Mango  v.  Edwards,  217. 

Manice  v.  Duncan,  131. 

Manly  v.  Atchinson.  314. 

Manly  v.  Baycut,  170. 

Mann  v.  Brown,  113. 

Mann  v.  Everetts,  244. 

Mannsell  v.  Egan,  276. 

Manufacturers'  Bank  v.  Cole,  66. 

Manufacturers',  etc.,  Co.  v.  Odd  Fel- 
lows Asso.,  282. 

Manufacturers'  Nat.  Bank  v.  Dicker- 
man,  66,  72,  P0. 

Mansf.eM  v.  Edwards,  178,  210. 

Maquoketa  v.  Willey,  131. 

Marble  v.  Harvey,  30. 

Marcy  v.  Braeger,  327. 

Marfins  v.  Willard,  324. 

Markland  Mining  Co.  v.  Kimme,  51. 

Marlin  v.  Bull.  194,  201. 

Marlow  v.  Lacy,  263. 

Marnizinger  v.  Mohr.  371. 

Marryatt  v.  White,  97. 

Marsh  v.  Bank,  26. 

Marsh  v.  Griffin,  107,  362. 

Marsh  v.  Lowe,  16. 

Marsh  v.  People,  249.  258. 

Marshall  v.  Hudson,  134,  173. 

Martin  v.  Bank,  99. 

Martin  v.  Curtis,  385. 


Martin  v.  Ellerbe,  35,  174. 
Martin  v.  Frantz,  211. 
Martin  v.  Kilbourne,  224. 
Martin  v.  Moor,  217. 
Martin  v.  Porter.  265. 
Martin  v.  Tally.  05. 
Martin  v.  Wright.  352. 
Martindale  v.  Brock,  164. 
Martin's  Estate,  343. 
Marvin  v.  Stone,  252. 
Mason  v.  Lord,  198,  202. 
Mason  v.  Pierson,  194. 
Mason  v.  Pritchard,  67,  354. 
Masser   v.   Strickland,   227. 
Massie  v.  Mann,  27. 
Mathews  v.  Phelps,  356. 
Matley  v.  Harris,  155,  157. 
Matthews  v.  Garman.  83. 
Matthews  v.  Hall,  186. 
Matthews  v.  Skinker,  29. 
Matthews  v.  Switzler,  97. 
Mattingly  v.  Riley,  104. 
Mattingly  v.  Sutton,  162. 
Mauran  v.  Bullus,  356. 
Maury  v.  Waxelbaum,  348. 
May  v.  Hammond,  6. 
May  v.  May,  183. 
May  v.  Vane,  211. 
May  v.  Williams,  382,  383,  395. 
Mayer  v.  Isaacs,  356. 
Mayhew  v.  Boyd,  67. 
Mayhew  v.  Crickett,  170. 
Maynard  v.  Morse,  348,  355. 
Mayor  v.  Crowell,  70,  305. 
Mayor  v.  Horn,  70,  305. 
Mayor  v.  Kelly,  80. 
Mayor  v.  Kennett,    143. 
Mayor  v.  Merritt,  337. 
Mayor  v.  Wright,  71. 
McAllister  v.  Clark,  237. 
McCarty  v.  Frazer,  251. 
McCarty  v.  Roots,  206,  210. 
McCartney  v.  Ridgway.  66,  100. 
McCaughey  v.  Smith,  110. 
McCawley  v.   Smith,  404. 
McClatchie  v.  Durham,  211. 


350 


TABLE    OF    CASES. 
Reference  to  Sections. 


McClelland  v.  Chamber?,  428. 
McClurg  v.  Fryer:  359. 
McClusky  v.  Cromwell,  66. 
MeCollum  v.  Broughton,  165,  199. 
MeCollum  v.  Cushing,  355. 
MeCollum  v.  Hinckley,  146. 
McComb  v.  Kittridge,  46. 
McCombs  v.  Allen,  131,  216. 
MeOormick  v.  Bav  City.  51,  56. 
McCormick  v.  Irwin,  73. 
Mc-Cormick  v.  Thompson,  334. 
McCoy  v.  Scott.  246. 
McCrory    v.    Parks,    190. 
MeCune  v.  Belt.  210. 
McDoal  v.  Yeomans,  357,  359. 
McDonald  v.  Atkins.  329.  332. 
McDonald  v.  Felt.  219.  231. 
McDonald  v.  Harris,  60,  67. 
McDonald  v.  Magruder,  10,  16,  194. 

206.  210. 
McDonald  v.  Wood,  384. 
McDougald  v.  Development  Co.,  341. 
McDowell  v.  Bank,  99. 
McFadden  v.  Fritz.  238. 
MeFarlane  v.  Howell,  226. 
McFarlane  v.  Milwaukee.  360. 
MeFarlane  v.  Wilber,  411. 
McGaughey  v.  Jacoby.  251. 
McGlothlin  v.  Wyatt.  260. 
McGraw  v.  Governor.  325. 
McGuire  v.  Williams.  337. 
HcGhntc  v.  Husgett.  206. 

rdy  v.  Wadsworth,  144. 
Mel   .enny   v.   Blum.    147. 
"r  Int.  -a-Huntington    Co.    v.    Reed, 

-  v.  Ward.   11. 
MeKenna  v.  George.  197. 

ttrifi  v.  Ward.  290. 
"     n  v.  Webb.  66. 

m  v.  Bartlett,  248. 
McKim  v.  Ha]  "    243. 

McKim  v.  Morse,  261. 
McKnight  v.  Bradley,  1S9. 
MeKnight  v.  Strong,  217. 
McLaren  \.  M-  Martin,  90. 


McLaren  v.  Watson,  339,  357. 
McLaughlin  v.  MeGovern  ,366. 
McLean  v.  McLean,  253. 
McLean  v.  State,  61,  337. 
McLondon  v.  Mortg.  Co.,  334. 
McMillan  v.  Parkell,  58. 
McMillin  v.  Mason.   193. 
McMullen  v.  Rafferty,  90. 
McNairy  v.  Eastland,  163. 
McXaught  v.  McClaughrey,  39,  342. 
McNee  v.  Sewell,  325. 
McNeill?  v.  Patchin,  165,  210. 
MeXutt  v.  Livingston,  333. 
McPhillips    v.    MeGrath,    302,    303, 

308. 
McQuewans  v.  Hamlin,  26. 
McTaggart   v.   Watson,   291. 
McWilliams  v.  Mason,  100,  2S7. 
Meade  v.  McDowell.  371. 
Meeroney   v.    Stanley,    44. 
Medlin  v.  Commonwealth,  424. 
Melendy  v.  Capen,  354. 
Melone  v.  Keener,  390. 
Melville  v.  Dodge,  285. 
Menard  v.  Seudder,  346. 
Merchants,  etc.,  Bank  v.  Cumminge, 

1S2. 
Merchant's  Ins.  Co.  v.  Herber,  97. 
Merrill  v.  Harris.   253. 
Merriman  v.  Barker.   123. 
Merriman    v.    McManus,    377,    391, 

393.  396. 
Mersman  v.  Werges,  104,  110. 
Merwin  v.  Austin.  144. 
Meuler  v.  Dutschuetz.   116. 
Meyer  v.  Barth,  65.  243. 
Meyer  v.  Hartman.  397. 
Meyers  v.  Campbell,  151. 
Meyers  v.  Miller.  l-">2. 
Michael  v.  Allbright.  196. 
Mich.  State  In^.  Co.  v.  Soule.  147. 
Middleboro   Nat.    Bank   v.  Richards, 

51. 
Middleton  v.  Hensley.  260. 
Middlesex  Manui.  Co.  v.  Lawrence, 

283. 


TABLE    OF    CASES. 


Reference  to  Sections. 


Middle    States,    etc.,    Co.    v.    Engle, 

359,  364. 
Mieswulde  v.  Jung,  115. 
Mighton  v.  Dawson,  256. 
Miles  v.  Davis,  238. 
Miles  v.  Linnel,  371. 
Miller  v.  Berky,  4. 
Miller  v.   Ferris,  52. 
Miller  v.  Finley,   110. 
Miller  v.   Gartin,   357. 
Miller  v.  Gillespie,  212. 
Miller  v.  Gilliland,  105. 
Miller  v.  Montgomery,  98. 
Miller  v.  Shein,  113. 
Miller  v.  Stern,  119,  129. 
Miller  v.   Stewart,   66,   68,   72,   102, 

286,  312. 
Miller  v.  Stout,  35,  174. 
Miller  v.  Stevens,  80. 
Milligan  v.  Holbrook,  347. 
Milliken  v.  Callahan,  129. 
Milliken  v.   Pratt,   93. 
Mills  v.  Brown,  382,  384. 
Mills  v.  Fowks,  98. 
Mills  v.  Hyde,  196. 
Milner  v.  Green,  411. 
Milwaukee  Co.  v.  Ehlers,  310. 
Milwaukee  Co.  v.  Pabst,  310. 
Minick  v.  Huff,  382. 
Minor  v.  Bank,  285. 
Mintern  v.  United  States,  314. 
Mississippi  Co.  v.  Jackson,  61. 
Mitchell  v.  Commonwealth,  422. 
Mitchell   v.   Railton,   340. 
Mitchell  v.  Roberts,  139. 
Mix  v.   People,   420. 
Mix  v.  Singleton,  235. 
Mix  v.  Vail,  233,  2S5. 
Moakley  v.  Riggs,  359. 
Mobile,  etc.,  R.R.  Co.  v.  Brewer,  282. 
Moffit  v.  Roche,  165. 
Moies  v.  Bird,  39,  42. 
Monroe  v.  Gifford,  233. 
Monson  v.  Drakely,  168,  194. 
Montague  v.   Tidcombe,   292. 
Montefiroe  v.  Lloyd,  S3. 


Monteith  v.   Commonwealth,   63. 

Montgomery  v.  Kellog,  352. 

Montgomery  v.  Page,  210. 

Montgomery  Co.  Bank  v.  Bank,  336. 

Montgomery  Railroad  v.  Hurst,  110. 

Monticello  v.  Lowell,  316. 

Montpelier  v.  Clarke,  337. 

Montstephen  v.  Lakeman,  392. 

Moodick  v.  Penman,  253. 

Mooney  v.  People,  423. 

Mooney  v.  State,  313. 

Moore  v.  Alleghany  City,  337. 

Moore  v.  Bowmacker,  241. 

Moore  v.  Bruner,  196,  200. 

Moore  v.  Campbell,  163. 

Moore  v.  Cross,  347. 

Moore  v.  Gray,  128. 

Moore  v.  McKinney,  43. 

Moore  v.  Redding,  46,  47. 

Moore  v.  Stanwood,  133. 

Moore  v.  Topliff,  20,  157,  193. 

Moore  v.  Wallis,  85,  306,  345. 

Moorehead  v.  State,  431. 

Moorman  v.  Hudson,  208. 

Moretz  v.  Ray,  320. 

Morgan  v.  Blackiston,  232. 

Morgan  v.  Long,  329,  332. 

Morgan  v.  Thompson,  113,  119. 

Morgan  v.  Smith,  111,  116,  198,  202 

Morgan  v.  West,  242,  258. 

Morienthal  v.  Mosler,  90. 

Morley  v.  Bootby,  40. 

Morley  v.  Metamora,  9,  289,  301> 

Morrill  v.  Boggott,  362. 

Morrill  v.  Lamson,  27. 

Morris  v.  Cleasby,  394. 

Morris  v.  Cooper,  244,  261. 

Morris  v.  Morris,  247,  250. 

Morris  Canal  Co.  v.  Van  Vorst,  72, 

286,  291.  293,  295. 
Morrison  v.  Bank,  97,  131. 
Morrison  v.  Berkey,  180,  195. 
Morrison  v.  Poyntz,  196,  197,  202. 
Morrison  v.  Schlesinger,  365. 
Morrisey  v.  Kinsey,  391. 
Morrow  v.  Morrow,  35. 


352 


TABLE    01     CASES. 


Reference  to  Sections. 


Morrow  v.  Penton,  254. 

Morrow  v.  State,  437. 

Morrow  v.  Wood,  310. 

Morse  v.  Blanchard,  46. 

Morse  v.  Williams,  168. 

Mortland  v.  Hines,  147. 

Morton  v.  Rice,  64. 

Moshier  v.  Kitchell,  388. 

Moshier  v.  Murphy,  213. 

Moses  v.  Murgatroyd,  151. 

Moses  v.  United  States,  292. 

Moss  v.  Craft,  131. 

Moss  v.  Pittinger,  131. 

Moss  v.  Pittingill,  64. 

Moss  v.  Riddle,  49. 

Mott  v.  Hazen,  411. 

Moulding  v.  Wilhartz,  65,  277,  278, 

279. 
Mount  v.  Commonwealth,  420. 
Mount    Pleasant    Bank    v.    Pollock, 
412. 

Mowbray  v.  State,  85. 

Mowing,  etc.,  Machine  Co.  v.  Land, 
366. 

Mowry  v.  Adams,  178. 

Mozingo  v.  Ross.  90,  91. 

Mulcrone  v.  Lumber  Co.,  385,  397. 

Mueller  v.  Barge,  208. 

Mullen  v.  Morris,  52. 

Mullendore  v.  Wertz,  120. 

Mullikin  v.  State,  70,  285. 

Mumford  v.  Railroad  Co.,  66,  72. 

Munroe  v.  Towers,  408. 

Murray  v.  Wood,  264. 

Music  v.  Music,  392. 

Mussey  v.  Raynor,  356. 

Muzzy  v.  Shattuck,  316. 

Myers  v.  Bank,  115. 

Myers  v.  Edge,  84. 

Myers  v.  Farmer,  70. 

Myers  v.  Kiowa  Co.,  317. 
•'■■  era  v.  Miller.  33S. 

rs  v.  United  States,  303. 
(i   era  v.  WelleB,  122. 
Myers  v.  Yaple,  154. 


N. 


Nading  v.  McGregor,  348. 
Narre  v.  Chittenden,  210. 
Nash  v.  Fugate,  51. 
Nathan  v.  Sloan,  347. 
National  Bank  v.  Cotton,  371. 
National  Bank  v.  Grand  Lodge,  12. 
National  Bank  v.  Phelps,  72. 
National  Eagle  Bank  v.  Hunt,  344, 

346,  368. 
National  Fire  Ins.  Co.  v.  Rawe,  400. 
National  Home  Build.  Asso.  v.  Bank, 

30. 
National  Machine  Bank  v.  Peck,  99. 
National  Rubber  Co.  v.  Sims,  394. 
Nauz  v.  Oakley,  23. 
Nazro  v.  Fuller,  108. 
Neagle  v.  Sprague,  348,  355. 
Neff  v.  Homer,  55,  107. 
Neff' s  Appeal,  130,  137. 
Neil  v.  Morgan,  53. 
Nelson  v.  Boynton,  391,  392. 
Nelson  v.  Flagg,  47. 
Nelson  v.  Woodbury,  253. 
Nettleton  v.  Billings,  408,  412. 
Nevitt  v.  Woodburn,  63,  65. 
Newbern  Bank  v.  Jones,  333. 
Newburg  Bank  v.  Smith,  99. 
Newcomer  v.  State,  69. 
Newlan  v.  Harrington,  103,  109. 
New  Haven  v.  Chidsey,  321. 
New  Haven  Bank  v.  Miles,  405,  407. 
New  Haven   Co.   Bank  v.  Mitchell, 
348. 

New    Home    Sewing    Mach.    Co.    v. 
Simon,  365. 

Newman  v.  Coza,   176. 

Newmarket  Sav.  Bank  v.  Hanson,  14. 

New  Orleans  v.  Gathreaux,  308. 

Newton  v.  Fields,  163. 

Newton  v.  Newton,  23. 

Newton  Wagon  Co.  v.  Diers,  349. 

New  York  Bank  Note  Co.  v.  Kerr, 
95,  193. 


TABLE    OF    CASES. 
Reference  to  Sections. 


853 


New  York  State  Bauk  v.  Fletcher, 

165. 
Niblo  v.  Clark,  414. 
Nichols  v.  Didrick,  41. 
Nichols  v.  Palmer,  111. 
Nicholson  v.  State,  431. 
Nicolls  v.  Ingersoll,  414. 
Nielson  v.  Fry,  194. 
Nixon  v.  Brand,  195. 
Noble  v.  Blount,  190. 
Noble  v.  Oil  Co.,  224. 
Noll  v.  Smith,  224. 
Nolley  v.  County  Court,  75. 
Norfolk  v.  People,  414,  421. 
Noridgewock  v.  Hale,  70. 
Norman  v.  Buckner,  254. 
Norris  v.  Towle,  252. 
Northern  Ins.  Co.  v.  Wright,  360. 
Northside  R.R.  Co.  v.  Worthington, 

28. 
Northwestern       Railway       Co.       v. 

Whinary,   286,   297. 
Norton  v.  Bank,  28,  29. 
Norton  v.  Coons,  194. 
Norton  v.  Eastman,  362. 
Norton  v.  Miller,  266. 
Norwalk  v.  Ireland,  324. 
Noxon  v.  DeWolf,  347. 
Noyes  v.  Granger,  79,  224. 
Noyes  v.  Humpureys.  381. 
Nowland  v.  Martin,  180. 
Nugent  v.  Wolfe,  382,  J83. 
Nunnery  v.  Day,  263. 
Nutton  v.  Isaacs,  272. 


O. 


Oakeley  v.  Parsheller,  21. 

Oakland  Sav.  Bank  v.  Murfey,  336. 

OTonner  v.  Bragly,  139. 

Odell  v.  Woothen,  224. 

Odlin  v.  Greenleaf,  200. 

Odom  v.  Owen,  209. 

Oelricks  v.   Spain,   237. 

Offord  v.  Davies,  87,  346,  367. 

Offterdinger  v.  Ford,  219,  231. 

23 


Ogden  v.  People,  423. 

Ohio,  etc.,  R.R.  Co.  v.  Hardy,  27. 

Ohio  Life  Ins.  Co.  v.  Reeder,  151. 

Olcott  v.  Lilly.  408,  412. 

Oldham  v.   Brown,   134. 

Olmstead   v.   Latimer,   114. 

Olmstead  v.  Olmstead,  68. 

Olney  v.  Greene,  111. 

Olson    v.    Chism,    119. 

Olson  v.  Royem,  59. 

Opp  v.  Ward,  157.  191,  224. 

Oppenheimer  v.  Hamrick,  280. 

Ordinary  v.  Heishon,  268. 

Ordinary  v.  Smith,  263. 

Ordinary  v.  Thatcher,  50. 

Orem  v.  Wrightson,  338. 

Ormer  v.  Young,  143. 

Or  rick  v.  Colston,  347. 

Or  ton  v.  Lincoln,  311. 

Orton  v.  Noonan,  404. 

Osborn  v.  Robbins,  32,  92,  136. 

Osborne  v.  Baker,  394. 

Osborne  v.  Harper,  187. 

Osborne  v.  Stone,  26. 

Osborne  v.  Sullikson,  342,  347. 

Osgood  v.  Miller,  117. 

Osterly  v.  Barber,  197. 

Oswald  v.  Berwick,  71. 

Otto  v.  Jackson,  60. 

Overend  v.  Financial  Corp.  R.R.  21. 

Ovington  v.  Smith,  232. 

Owen  v.  Homan,  116,  126. 

Owen  v.  Long,  24. 

Owen  v.  McGehee,  22,  195,  198. 

Owens  v.  Mynatt,  32. 

Owings  v.  Arnot,  102. 

Owings  v.  Owings,  186. 

Oxford  Bank  v.  Haynes,  353. 

Oxford  Bank  v.  Lewis,  121. 


P. 


Pace  v.  Pace,  201. 

Pacific  Nat.  Bank  v.  Mixter,  221. 

Pack  v.  State,  431. 

Pahlman  v.  Taylor,       8,  362. 


354 


TABLE    OF     CASES. 


Reference  to  Sections. 


Paige  v.  Parker,  348,  355. 

Paine  v.  Voorhees,  116. 

Palmer  v.  Bagg,   79. 

Palmer  v.  Blinn,  393. 

Palmer  v.  ^lerriwether,  412. 

Palmer  v.  Pettingill,   337. 

Palmer  v.  Pollock,  258. 

Palmer  v.  Witcherly,  397. 

Palmeter  v.  Carey,  11. 

Pam  v.  Stackhouse.  342,  343. 

Pardee  v.  Markle,  97. 

Parhani  Sewing  Mach.  Co.  v.  Brock, 

79,  83,  101. 
Parker  v.  Bidwell,  428. 
Parker  v.  Bradley,  52,  54. 
Parker  v.  Heaton,  397. 
Parker  v.  Medsker,  260,  301. 
Parker  v.  Pitts,  49. 
Parker  v.  Watson.  117. 
Parker  v.  Wise,  77. 
Parkhurst  v.  Vail,  39,  342. 
Parmalee  v.  Lawrence,  116,  13. 
Parnell  v.  Hancock,  224. 
Parrish  v.  State,  419. 
Parsons  v.  Briddock,  73,  168,  406. 
Parsons  v.  Dickinson,  89. 
Parsons  v.  Harrold,  46,  115. 
Parsons  v.  Nield,  191. 
Patchin  v.  Cromach.  24. 
Patterson  v.  Cone.  92,  135. 
Patterson  v.  Patterson,  194. 
Patterson  v.  Reed,  353. 
Patterson's  Appeal,  277. 
Pattison  v.  Hall.  97. 
Paul  v.  Berry,  10,  194. 
Paul  v.  Jones,  6. 
Paul  v.  Kaighn,  1H4. 
Paul   v.    Stackhouse,   40. 
Pavis  v.  Hulett,   151. 
Pawlet  v.  Kelley,  337. 
Paxton  v.  State,  301. 
Payne  v.  State,  428. 
Payne  v.  Wilson,  40. 
Peabody  v.  State,  328,  334. 
Peacock  v.  People,  :<2,  136. 
Peacock  v.  State,  425. 


Pearrs  v.  Folb,  59. 
Pearson  v.  Goyle,  173. 
Pearson  v.  Parker,  180,  187. 
Peaslee  v.  Reed,  173. 
Peck  v.  Frink,  353. 
Peck  v.  Harris,  342. 
Peebles  v.  Boone,  329,  331. 
Peel  v.  Tatlock,  143. 
Peele  v.  Northcote,  394. 
Pelty  v.  Cooke,  96. 
Pemberton  v.  Oakes,  99. 
Pendlebury  v.  Walker,  205,  260. 
Pendleton  v.  Bank,  298. 
Penn  v.  Collins,  111. 
Penn  v.  Howett,  52. 
Pennington  v.  Seal,  174. 
Pennsylvania,  etc.,  R.R.  Co.  v.  Rail- 
road Co.,  28. 
Penoyer  v.  Watson.  84. 
People  v.  Admire,  242. 
People  v.  Anable,  433. 
People  v.  Backus,  67,  72,  76,  313. 
People  v.  Bartlett,  426,  428,  434. 
People  v.  Bennett,  433,  436. 
People  v.  Bostwick,  51. 
People  v.  Brady,  435. 
People  v.  Bugbee,  419. 
People  v.  Burton,  61. 
People  v.  Caskney,  431. 
People  v.  Chalmers,  280. 
People  v.  Colby,   336. 
People  v.  Collins,  304.  309. 
People  v.  Coman,  434. 
People  v.  Cooney,  436. 
People  v.  Dikeman,  325. 
People  v.  Faulkner.  300. 
People  v.  Felton.  431. 
People  v.  Fields,  434. 
People  v.  Flynn.  434. 
People  v.  Foster,  323,  325,  328. 
People  v.  Gordon,  423. 
People  v.  Hartley,  52. 
People  v.  Higgins,  436. 
People  v.  Hilton,  311. 
People  v.  Hobbs.  436. 
People  v.  Hoffman,  242,  261.  i 


TABLE    OF    CASES. 
Reference  to  Sections. 


355 


People  v.  Hunter,  256. 

People  v.  Huson,  59. 

People  v.  Ingersoll,  416. 

People  v.  Jansen,  170. 

People  v.  Johnson,  436. 

People  v.  Laidlovv,  437. 

People  v.  Lee,  339. 

People  v.  Lott,  257. 

People  v.  Lucas,  311,  324. 

People  v.  Madden,  436. 

People  v.  Manning,  428,  434. 

People  v.  McFarland,  419,  434. 

People  v.  McHatton,  305,  313. 

People  v.  McReynolds,  421,  424. 

People  v.  McWilliams,  163. 

People  v.  Meehan,  434. 

People  v.  Merscreau,  324. 

People  v.  Miller,   1. 

People  v.  Millham,  423. 

People  v.  Moon,  310. 

People  v.  Morrison,  417. 

People  v.  Oregon,  315. 

People  v.  Pennock,  70,  311. 

People  v.  Pierce,  336. 

People  v.  Rich,  428. 

People  v.  Robb,  426. 

People  v.  Russell,  314. 

People  v.  Skidmore,  416. 

People  v.  Smith.  301,  337,  434,  435. 

People  v.  Stager,  424. 

People  v.  Tubbs.  428,  434. 

People  v.  Toomey.  66,  70,  282,  311. 

People  v.  Vilas,  280,  313. 

People  v.  White,  172.  280. 

People  v.  Wissig,  434. 

People's  Bank  v.  Bank.  29,  31. 

People's  Bank  v.  Legrand,  99. 

People's  Build.  Asso.  v.  Worth,  71. 

People's  Ins.  Co.  v.  McDownell,  103. 

Peoria  Savings,  etc.,  Co.  v.  Elder,  69, 

356. 
Peoria  Second  Nat.  Bank  v.  Diefen- 

dorf,  340. 
Pepper  v.  Donnelly  247. 
Pepper  v.  State,  51. 
Pequawket  Bridge  v.  Mathis.  301. 


Perkins  v.  Barstow,  90,  347. 

Perkins  v.  Cheney,  89,  270. 

Perkins  v.  Gilman,  121. 

Perkins  v.  Littlefield.  386. 

Perkins  v.  Rudolph,  241. 

Perkins  v.  Stimmel,  264. 

Perry  v.  Horn,  318. 

Petefish  v.  Watkins,  94. 

Peters  v.  Bayhill,  180,  195. 

Peters  v.  Mackay,  138. 

Peterson  v.  Russell,  347,  348. 

Petty  v.  Douglass,  114. 

Pfenninger  v.  Kokesoh,  90. 

Phares  v.  Barbour,  132. 

Phelps  v.  Church,  357. 

Phelps  v.  Sargent,  359. 

Phelps  v.  Stone,  383. 

Phelps  v.  Vischer,  347. 

Pheonix  Ins.  Co.  v.  Findlay.  60. 

Pheonix  Iron  Works  v.  Rhea,  144. 

Philadelphia,  etc.,  R.R.  Co.  v.  Little, 

149,  193. 
Phillips  v.  Barzeal,  248. 
Phillips  v.  Foxall,  88,  127,  143,  292, 
Phillips  v.  Preston,  210. 
Phillips  v.  Riley,  146. 
Phillips  v.  Solomon,  94. 
Phillips  v.  Thompson,  151. 
Philpot  v.  Briant,  170. 
Phipsburg  v.  Dickinson,   303. 
Pickens  v.  Miller,  209. 
Pickering  v.  Day,   143. 
Pickersgill  v.  Lahens,  86,  226. 
Pickett  v.  Bates,   176. 
Pico  v.  Webster,  321. 
Picot  v.  Signiago,  58. 
Pidock  v.  Bishop,  126,  141. 
Piercy  v.  People,  428. 
Piercy  v.  Piercy,  226. 
Tigott's  Case,   102. 
Pike  v.  Warren,  90. 
Pile  v.  McCay,  194. 
Pine   Co.   v.   Willard,  69,   292,   303, 

307. 
Pinkstaff  v.  People,  9,  203,  247,  260. 
Pinson  v.  Kirsh,  222. 


356 


TABLE    OF    CASES. 


Reference  to  Sections. 


Pintard  v.  Davis,  146. 

Piper  v.  Newcomer,  171. 

Piper's  Estate,  251. 

Pitt  v.  Purssard,  177,  194. 

Pittsburg,  etc.,  R.R.  Co.  v.  Shaeffer, 

143,  288,  290,  292,  293,  363. 
Place  v.  Mcllvane,  122. 
Place  v.  Taylor,  334. 
Plant  v.  Storey,  151. 
Platter  v.  Green,  348. 
Pleasant's  Appeal,  87. 
Plumnier  v.  People,  32,  136. 
Plunkett  v.  Machine  Co.,  362. 
Plymouth  v.  Painter,  304. 
Poe  v.  Dixon,  11,  12,  192. 
Pogue  v.  Joyner,  214. 
Polak  v.  Everett,  113,  130. 
Pole  v.  Ford,  95. 
Polkinghorne  v.  Hendricks,  115. 
Pollock  v.  Cox,  257. 
Poole  v.  Doster,  151. 
Poole  v.  Dyer,  214. 
Poole  v.  Lowe,  151. 
Portage  County  Bank  v.  Lane,  106. 
Porter  v.  Bank,  146. 
Porter  v.  Hodenpuyl,  118. 

Porter  v.  Horton,  200. 

Post  v.  Jackson,  182. 

Post  v.  Losey,  35,  107,  113. 

Post  v.  Shafer,  226. 

Postmaster  General  v.  Munger,  308. 

Pott  v.  Nathans,  73,  95,  168,  207. 

Potter  v.  Brown,  382,  383. 

Potter  v.  Gronbreck,  82,  369. 

Potter  v.  Ogden,  255,  257,  258. 

Potter  v.  State,  53,  309. 

Potter  v.  Titcomb,  251,  252. 

Potter  v.  Van  Vranken,  228. 

Powers  Dry-Goods  Co.  v.  Harlin,  51 

Powell  v.  Edwards,  200. 

Powell    v.    Kettle,    86. 

Powell  v.  Powell,  9. 

Powell  v.  Smith,  178,  184. 
Powell  v.  State,  431. 

Powers  v.  Bumcratz,  348,  353,  355. 

Towers  v.  Clarke.  365. 


Powers  v.  Nash,  194. 

Powers  v.  Rankin,  377,  392,  393. 

Pownal  v.  Ferraud,  176. 

Pratt  v.  Conway,  11. 

Pratt  v.  Hedden,  42. 

Pratt  v.  Humphrey,  374,  386. 

Pratt  v.  Northam,  255. 

Pratt  v.  Trustees,  87. 

Pray  v.  Maine,  163. 

Preble  v.  Baldwin,  374. 

Preseott  v.  Newell,  187. 

Prescott  v.  Pitts,  253. 

Preston  v.  Campbell,  196. 

Treston  v.  Gould,  211. 

Preston  v.  Huntington,  101,  111. 

Preston  v.  Preston,  197,  207. 

Price  v.  Bank,  18. 

Price  v.  Barker,  116. 

Price  v.  Edwards,  170. 

Price  v.  Price,  122. 

Price  v.  State,  431. 

Prickett  v.  People.  313. 

Prickett  v.  Wilson,  339. 

Primrose  v.  Bromley,  201. 

Prince  v.  Clark,   217. 

Pritchett  v.  People,  35,  213. 

Probate  Court  v.  Hagard,  244. 

Probate  Court  v.  Merriam,  251. 

Providence  v.  McCackron,  316. 

Providence  v.  Piper.  387. 

Puckett  v.  Bates,  381. 

Pugh  v.  Conover,  185. 

Pundman  v.  Schoenlich,  301. 

Purcell  v.  Steele,  213. 

Purdy  v.  Peters,  351,  365. 

Pursley  v.  Hayes,  268. 

Putney  v.  Farnham,  384. 

Pybus  v.  Gibbs,  66,  72,  313. 

Pyle  v.  Clark,   115. 

Pynes  v.  State,  428. 

Q. 

Quimby  v.  Putnam,  371. 
Quimi  v.  Moss,  362. 


TABLE    OF    CASES. 


357 


Reference  to  Sections. 


Radcliff  v.  Poundstone,  398. 

Rader  v.  Yeargin,  251. 

Ragland  v.  Justices,  203. 

Railroad  Co.  v.  Houston,  393. 

Railroad  Co.  v.  Quigley,  28. 

Railton  v.  Mathews,  126,  140. 

Ralston  v.  Wood,  195. 

Ramsey  v.  Commonwealth,  402. 

Ramsey  v.  Coolbaugh,  402. 

Ramsey  v.  Lewis,  208. 

Ramsey  v.   Whitbeck,   29,   301,   318. 

Rand  v.  Barrett,  169. 

Randolph  v.  Fleming,   113. 

Raney  v.  The  Governor,  282. 

Ranger  v.  Carey,  347. 

Ranger  v.   Sargeant,   356. 

Rankin  v.  Wilson,  151. 

Rapp  v.  Ins.  Co.,  85,  143,  345. 

Rathbone  v.  Frost,  365. 

Rathbone  v.  Warren,  411,  414. 

Rawlings  v.  Gunstern,  412. 

Rawling3  v.  State,  434,  435. 

Rawson  v.  Beekman,  146. 

Rawson  v.  Piper,  258. 

Rawson  v.  Taylor,  21. 

Ray  v.  Breinner,  172. 

Read  v.  Case,  414. 

Read  v.  Nash,  383. 

Redder  v.  Kingham,  382,  383. 

Redfield  v.   Frear,   404. 

Redfield  v.   Haight.    183. 

Redmon   v.   Marvel,   86. 

Redwood  Co.  v.  Tower,  310. 

Reed  v.  Commonwealth,   244. 

Reed  v.  Fish,  354. 

Reed   v.    Flipper,    114. 

Reed  v.  Garvin,   128,  357. 

Reed  v.  Hedges,  304. 

Reed  v.  Lane,  24. 

Reed  v.  Nash,  401. 

Reed  v.  Norrig,  186. 

Reed  v.  Police  Court,  425. 

Rees  v.  Berrington,  113. 


Reese  v.  United  States,  55,  102,  413, 

414,  427,  430,  431. 
Reeves   v.   Pulliain,    173. 
Reherd  v.  Long,  244. 
Reifsnider   v.    Lee,    323. 
Reigart  v.  White,  2,  4,  348,  376. 
Eeinhard  v.  Columbus,  437. 
Rcmbrant  v.  Johnson,  208. 
Remsen  v.  Graves,  123,  365. 
Renfroe  v.  Colquitt,  318. 
Ressiter  v.  Waterman,  374,  382,  383, 

386,  396. 
Rex  v.  Finmore,  434. 
Rex  v.   Spencer,   434. 
Rey  v.   Simpson,   347. 
Reynolds  v.  Barnard,  375. 
Reynolds  v.  Harrel,  415.  416. 
Reynolds  v.  Reynolds,  256. 
Reynolds  v.  Ward,  48. 
Rhode   v.   McLean,   129. 
Rice  v.  Loomis,  82. 
Rice  v.  Rice,  188,  194. 
Rice  v.  Sanders,  ]  1. 
Rice  v.  Southgate,  152,  174,  301. 
Rich  v.  Starbuck,  56. 
Richards  v.  Morse,  407. 
Richards  v.  Storer,  218. 
Richardson  v.  Allen,  339. 
Richardson  v.  Bank,  65,  237,  238. 
Richardson  v.  Chemical  Laboratory, 

159. 
Richardson  v.  Draper,  86. 
Richmond   v.  Kasey,   127. 
Richmond  v.   Moore,  49,   35 
Richmond  v.  Wandel,  318. 
Richter  v.  Frank.  370. 
Ricketson  v.  Giles.  177. 
Riddle   v.    Baker.   65. 
Riddle  v.  School  Dist..  70.  305. 
Riddle  v.  Thompson,  4,  348. 
Riggin  v.  Commonwealth,  42* 
RindskofF  v.  Doman.   118. 
Rinhard  v.  Calemby,  402. 
Rintout  v.  White.  392. 
Rittenhouse  v.   Ammerman,   246» 
Rittenhouse  v.  Kemp,  122. 


358 


TABLE    OF    CA.^iiS. 


Reference  to  Sections. 


Xittenhouse  v.  Levering,  165, 

Hitter  v.  Singmaster,  125. 

Rizer  v.  Callon,    180,    187. 

Rizon  v.  Young,  254. 

Roach  v.   Summer,   101. 

Roach  v.   Thompson,    183. 

Robbins  v.  Apgar,  397. 

Robbins  v.  Bingham,  357. 

Roberts  v.  Gordon,  431. 

Roberts  v.  Hawkins,   349. 

Roberts  v.  Laramie  Co.,  317. 

Roberts  v.  Riddle,  348. 

Roberts  v.  Sully,  362. 

Roberts  v.  Trigg,   196. 

Roberts   v.    Trust    Co.,    1. 

Robertson  v.  Deartharge,  10,  165, 
199. 

Robertson  v.  Moxcey,  195. 

Robertson  v.  Trigg,  33S. 

Robeson  v.  Blevins,  52. 

Robeson  v.  Roberts,   131. 

Robeson  v.  Thompson,  405. 

Robinson  v.  Boyd,  3.  7.  194. 

Robinson  v.  Dale.  363. 

Robinson  v.  Gould,  32,  136. 

Robinson   v.   Hodges,   243. 

Robinson  v.  Hyer,  341. 

Robinson  v.  Millard,  244. 

Robinson  v.  Miller,  46. 

Robinson  v.  Offutt.  122. 

Robinson  v.  Plimpton.  224,  225. 

Robinson  v.  Reid.  109. 

Rocco  v.  Cicalla,  250. 

Rocherean  v.  Jones,  336. 

Rochester  v.  Randall.  69,  201,  273. 

Rochester  Bank  v.  Elwood,  80,  285. 

Rock   v.    Stringer,    316. 

Rockford  Sendon  Nat.  Bank  v.  Gay- 
lord,    349. 

Rock  Island  v.  Mercer  County,  437. 

Rockville  Nat.  Bank  v.  Holt,  116, 
117. 

Roe  v.  Kiser,  185. 

Roeder  v.  Nicdermeier.  208. 

Rogers  v.  Qosnell,  358. 

Rogers  v.  Knccland.  388. 


Rogers  v.   State,   69. 
Rogers  v  .Trustees,  138,  152,  170. 
Rogers  v.  United  States,  59. 
Rollstone    Nat.    Bank    v.    Carleton, 

285,  286. 
Romine  v.  Romine.  180. 
Roper  v.   Sangamon   Lodge,   51,   70, 

126,  140,  141,  288,  289. 
Borer  v.  Ferguson,  152. 
Rose  v.  Williams,  113. 
Rosenbaum  v.  Goodman,  3,  204,  207. 
Rosenthal  v.  Perkins,  131,  226. 
Boss  v.   Allen,    176,   187. 
Ross  v.  Espy,  210. 
Ross  v.  Hatch.  316. 
Ross  v.  Jones,  16,  146. 
Ross   v.   Menefee,    175. 
Ross  v.  Wallenberg,  382. 
Ross  v.  Williams,  276. 
Rothermal  v.  Hughes,  126. 
Eothlinger  v.  Wonderly,  224. 
Rottman  v.  Fix.  399. 
Rouse  v.  Banking  Co.,  21. 
Bouse  v.  Mohr,  38. 
Rouss  v.  Cregler,  356. 
Routan  v.   Lacey,   145. 
Rowe  v.   Buchtel,   146. 
Rowe   v.    State,    418. 
Rowland  v.  Stevenson,  408. 
Royal    Life   Ins.    Co.   v.   Davis,   85, 

345. 
Rubush  v.  State,  423. 
Bucker  v.  Bobinson,   114,  116. 
Rudolph  v.  Hewitt,  361. 
Budolph  v.  Malone,  247. 
Buggies  v.  Covey,  412. 
Rumberger  v.   Golden,   44,   48. 
Bunde  v.  Runde.  384. 
Rush  v.  State,  262. 
Rusher  v.  State.  323. 
Russell  v.  Annabel.  52,  54. 
Russell    v.    Ru'>k.    370. 
Rusell   v.   Clarke.   151.  347. 
Russell  v.  Fairlor,  190. 
Russell  v.  Freer,  50,  51. 
Russell  v.  Mosley,  39,  40. 


TABLE    OF    CASKS. 
Keference  to  Sections. 


359 


Russell  v.  State,  434. 
Russell  v.  Wiggin,  356. 
Rutter   v.   Hall,   257. 
Ryan  t.   Krusen,    195. 
Ryan  v.  Morton,  60,  103,  138. 
Ryan  v.   People,   265. 
Ryan  v.  Pistone,  385. 
Ryan  v.  Shawneetown,  18. 
Ryan  v.  Trustees,  07. 
Ryan   v.    Williams,    66. 


S. 


Sacramento  v.  Dunlap,  52. 

Sage  v.  Hammonds,  264. 

Sage  v.  Strong,  100,  226,  227. 

Saint  v.  Wheeler.   127. 

Saline  County  v.  Brice,  130. 

Salt  Lake  City  v.  Hollister,  30. 

Salt  Springs  Nat.  Bank  v.  Pratt, 
359,  360. 

Salt  Springs  Nat.  Bank  v.  Sloan, 
360. 

Salyers  v.  Ross,  204. 

Sample  v.  Hale,  112. 

Sanders   v.    Gillespie,    383. 

Sanders  v.  Weilburg,  201,  208. 

Sanderson  v.  Arton,  292. 

Sanderson  v.  Osten,  88,  143. 

Sandford  v.  Balkley,   158. 

San  Diego  First  Nat.  Bank  v.  Bab- 
cock,    339. 

Sandwich  v.  Fish,  337. 

Sanford  v.  Allen,  359. 

Sanford  v.  Oilman,  253. 

Sangster  v.  Commonwealth,  324. 

Sapp  v.  Aiken,   180. 

Sargent  v.  Salmond,  160. 

Sarle  v.  Court,  253. 

Savage  v.   Bank.   36,  42. 

Savage  v.  Carleton,  146. 

Savage  v.  Fox,  39. 

Savings  Bank  v.  Boddicker,  50.  51. 
52. 


Savings  Bank  v.  Hunt,  70,  306. 
Sawyer  v.  Campbell,  51,  55,  113. 
Sawyer  v.  Chambers,  366. 
Savers  v.  Cassell,  260. 
Saylea  v.  Sims,  165. 
Snyward  v.  Conant,  411. 
Scheid    v.    Liebshultz,    298. 
Schley  v.  Merritt,  347. 
Schmitgels  Appeal,  207. 
Schneider  v.  Commonwealth,  425. 
Schneider  v.  Schiffman,  347. 
Schock  v.  Miller,   133. 
Schoenwald  v.  Driden,  167. 
Schoneld   v.   Churchill,   9.   203,   247, 

276. 
Schoonover  v.  Allen,   164. 
Schoonover  v.  Osborne,  361. 
School  Directors  v.  Brown,  33. 
School  Dist.  v.  Livens,   112. 
Schoolfield  v.  Rudd,  163. 
Schott  v.  Youree,  238. 
Schram  v.  Werner.  7. 
Schribner  v.  Adams.  208. 
Schribner  v.  Rutherford,  348. 
Schuff  v.  Pflang,  308. 
Schuyver  v.  Hawkes,  56. 
Scott  v.  Bryan,  196. 
Scott  v.  Hall,  115. 
Scott  v.  Hunt,   329. 
Scott  v.  Ryan,  325,  326. 
Scott  v.  State,  311,  419. 
Scott  v.  Timberlake,  144. 
Scott  v.  Whippes,  52. 
Scott  Co.  v.  Ring,  70,  305,  313. 
Scotten  v.  Fegan,  336. 
Screws  v.  Watson,  231. 
Serewmen's   Benev.   Asso.   v.   Smith, 

292. 
Scully  v.  Kirkpatrick,  428. 
Seans  v.  Van  Dusen,  224. 
Sears  v.  Swift,   348. 
Sea  vers  v.  Phelps,  25. 
Sebastian  v.  Bryan.  260. 
Security  Ins.   Co.   v.   Ins.   Co.,    196, 

197. 

rv  v.  Connor.  411. 


360 


TABLE    OF    CASES. 
Reference  to  Sections. 


Seeley  v.  Brown.  411. 

Seely  v.  People,  315. 

Seeman  v.  Inman,  394. 

Seitzler  v.  Mishler,  22. 

Selser  v.  Brook?.  315. 

Selzer  v.   Brock,   57. 

Semmes   v.   Naylor,    168. 

Semple  v.  Pink,  341. 

Sepp  v.  MeCann,  112. 

Sevier  v.  Roddie,   187. 

Seward  v.  Jackson,   160. 

Sext  v.  Geise,  391,  393. 

Sexton  v.  Sexton,  211. 

Seymour  v.  Mickey,  347. 

Shaaber  v.  Bushong,  379. 

Shadburne  v.  Daly,  371. 

Shane  v.  Francis,  6. 

Shapleigh   Hardware   Co.    v.    Wells. 

20,  21. 
Sharon  v.  Sharon,  224. 
Sharp  v.  Bedill,  225. 
Sharp  v.  Miller,  224. 
Shaw   v.    Church.    12:2. 
Shed  v.  Pierc?.  120. 
Sheeby  v.  Mandeville,  295. 
Sheid  v.  Liebshultz,  53. 
Shelby  v.  Governor,  321. 
Sheldon  v.  Cureton.  257. 
Shepard  v.   Pebles,  65. 
Shepard  v.    Shears,   359. 
Shepherd  v.  May,   13,  20,  21. 
Sherman  v.  Beach,  165. 
Sherman  v.  Mulloy,  354. 
Sherman  v.  Pedrick,  360. 
Sherman  v.  State,  27. 
Sherraden  v.  Parker,  131. 
Sherrell  v.  Goodrum,  328. 
Sherrod  v.  Rhodes,  206. 
Sherrod   v.   Woodward.    192. 
Sherwood  v.  Hill.  256. 
Sherwood   v.   Stone,   394. 
Shickle,    etc.,    Iron    Co.    v.    Water 

Works  Co.,  356. 
Shields  v.  Smith,  246,  411,  412. 
Shimer  v.  Hightshue,  228. 
Shine  v.  Bank,  66,  35C. 


Shipp  v.  Suggett,  110. 
Shoemaker  v.  Benedict,  90. 
Shoellenberger's  Appeal,  264. 
Shore  v.  Wilson,  347. 
Shortredge  v.   Cheek,  37. 
Showles  v.  Freeman,  74. 
Shreffer  v.  Nadelhoffer,  67. 
Shroyer  v.  Richmond,  60,  266. 
Shufeldt  v.  Smith,  387. 
Shupe  v.  Galbreath,  341. 
Shute  v.  Taylor,  170,  171. 
Sigourney  v.  Drury,  371. 
Sigourney  v.  Waddle,  27. 
Sigourney  v.  Wetherell,  118. 
Silvers  v.  State,  431. 
Silvey  v.   Dowell,  208. 
Simmons  v.  Guise,  122. 
Simonson  v.  Grant,  100,  103,  138. 
Simpson  v.  Board,  52. 
Simpson  v.  Cook,  84. 
Simpson  v.  Griffin,  183. 
Simpson  v.  Nance,  3S2. 
Simpson  v.  Robert,  415,  416. 
Sims   v.   Lively,   246. 
Sinclair  v.  Redington,  198. 
Singer  Mach.  Co.  v.  Hebbs,  80. 
Singer   Manuf.    Co.   v.    Bennett,   61, 

165. 
Skillett  v.  Fletcher,  79. 
Skillin  v.   Merrill.    194. 
Skinner  v.  Hall,  20,  21. 
Slagle   v.   Pow,    122. 
Slaughter  v.  Moore.  372. 
Slemberg  v.  State.  421. 
Slimgrehe  v.  Beveling  Co.,  154. 
Sloo  v.  Poole,  196,  200. 
Slothoff  v.  Dunham,  196. 
Small  v.  Curie.  32.   100. 
Smarr  v.  Schnitter,  122. 
Smart  v.  Cason,  437. 
Smart  v.  Smart,  397. 
Smead  v.  Railroad  Co.,  31. 
Smith  v.  Berry,  207. 
Smith  v.  Clopton,  170. 
Smith  v.  Commonwealth,  431. 
Smith  v.   Coon,  90. 


TABLE    OF    CASES. 


361 


Reference  to  Sections. 


Smith  v.  Crooker,  56. 

Smith  v.  Crouse,  225. 

Smith  v.  Dann,  ,348,  355. 

Smitli   v.  Davenport,   178. 

Smith  v.  Delaney,  382. 

Smith  v.  Dickinson,  357. 

Smith  v.  Felton,   144. 

Smith  v.  Finch,  390. 

Smith  v.  Freyler,  146. 

Smith  v.  Horbin,  193.        / 

Smith   v.   Huesman,  225. 

Smith  v.  Hyde,  376. 

Smith  v.  Ide,  349. 

Smith  v.  Jewett,  253. 

Smith  v.  Joslyn,  140. 

Smith  v.  Kitchens,  424. 

Smith  v.  Laywood,  382. 

Smith  v.  Loan  Asso..  139. 

Smith  v.  Lockwood,  77. 

Smith  v.  Mason,   195,   196. 

Smith  v.  Mayo,  386. 

Smith  v.  Molleson,  112,  356. 

Smith  v.  Montgomery,  84. 

Smith  v.  Peoria  Co.,  50. 

Smith  v.  Rice,  64. 

Smith  v.  Ruby,  239,  240. 

Smith  v.  Rumsey,   163,  202. 

Smith  v.  Sheldon,  21,  100,  171. 

Smith  v.  Smithson,  65. 

Smith  v.  Staples,  194. 

Smith  v.  Stephens,  75. 

Smith  v.  United  States,  55,  56,  80, 

102,  104. 
Smith  v.  Whitten,  239. 
Smith  v.  Winter,  35,  89,  117. 
Snell  v.   State,   325. 
Snell  v.  Warner,  177. 
Snydaeker  v.  Land  Co..  192. 
Snider  v.  Greathouse,  187. 
Snyder  v.  Blair,  186. 
Snyder  v.  Leibengood,  341. 
Snyder's  Estate,  341. 
Sollee  v.  Mengy.  371. 
Solomon  v.  Reese,  139. 
Sooy  v.  State,   126,  140,  309, 
Somers  v.  Pumphrey,  25. 


Soule  v.  United  States,  337. 
South   v.   Maryland,  326. 
South  Berwick  v.  Hunter,  56. 
Southern  Cotton  Oil  Co.  v.  Bass,  78. 
South  Omaha  Nat.  Bank  v.  Wright, 

151. 
Southwiek  Hank  v.  Grosse, 
Soverhill  v.  Snyder,  252. 
Spann    v.    Cochran, 

396. 
Sparks  v.  Bank,  305. 
Spa ulding  v.  Putnam,  347. 
Spear   v.   Bank,  374,   386. 
Spencer  v.  Houghton,  262. 
Sperb  v.  McCoun,  249,  267. 
Spillman  v.  Smith,  177. 
Sprigg  v.  Bank,  58. 
Springer  Litho.  Co.  v.  Wavey.  3G2. 
Sponhauer  v.  Malloy,  177,  190,  191. 
Spurgeon  v.  Smitha,  224. 
Stafford  v.  Bank,  153. 
Stahl  v.  Berger,  56. 
St.  Albans  Bank  v.  Dillon,  376. 
Stallings  v.  Johnson,  46. 
Standard  Brewery  Co.  v.  Kelly,  30. 
Standard  Oil  Co.  v.  Hoese,  348. 
Standley  v.  Adams,  341. 
Stanford  Bank  v.  Benedict,  97. 
Stark  v.  Fuller,   150. 
Stark  v.  Small,  27. 
Starr  v.  Commonwealth,  414. 
State  v  .Adams,  429,  430. 
State  v.  Aleup,   301. 
State  v.  Allen,  429,  430. 
State  v.  Anthony.  246,  253. 
State  v.  Atherton,  287. 
State  v.  Atkins,    157. 
State  v.  Aubrey,  423. 
State  v.  Austin,  52,  54. 
State  v.  Babb,  427. 
State  v.  Baker,  315,  320. 
State  v.  Baldwin,  423. 
State  v.  Barrett,  247. 
State  v.  Bateman,  310. 
State  v.   Bebee,  418. 
State  v.  Becker,  423. 


362 


TABLE    OF    CASES. 


Reference  to  Sections. 


State  v. 

Berning,  9,  203,  247. 

State  v. 

Hancock,  431. 

State  v. 

Berry,  305,  430. 

State  v. 

Harper,  316. 

State  v. 

Blake,   173. 

State  v. 

Harvey,  309. 

State  v. 

Blakenore,  276,  318. 

State  v. 

Haskett,  427,  431. 

State  v. 

Bliss,   334. 

State  v. 

Henderson,  331. 

State  v. 

Boon,  84. 

State  v. 

Hill,   54. 

State  v. 

Bower,   311. 

State  v. 

Holmes,  424. 

State  v. 

Bowman,  52,  54. 

State  v. 

Horn,  414,  429. 

State  v. 

Brantley,  32. 

State  v. 

Hostes,  265. 

State  v. 

Brooks,  431. 

State  v. 

Houston,  316,  423. 

State  v. 

Brown,  253,  324,  423. 

State  v. 

Howe,  805. 

State  v. 

Buffalo,   61. 

State   v. 

Howeil   County,   27. 

State  v. 

Buffurn,   431. 

State  v. 

Hughes,   263. 

State  v. 

Carleton,  313. 

State  v. 

Hull,  260,  265. 

State  v. 

Carroll,  324. 

State  v. 

Ireland,  325. 

State  v. 

Chick,  102,  106. 

State  v. 

Jennings,  324. 

State  v. 

Clark,  431. 

State  v. 

Johnson,  242,  258,  310. 

State  v. 

Cobb,  431. 

State  v. 

Jones,  69,  260,  424. 

State  v. 

Cone,  428. 

State  v. 

Kraner,  436. 

State  v. 

Conover,  324. 

State  v. 

Kurtzebone,  305. 

State  v. 

Corey,  310. 

State  v. 

Lake,  331. 

State  v. 

Cornig,  436. 

State  v. 

Langton,  431. 

State  v. 

Crooks,  308. 

State  v 

Lanier,    316. 

State  v. 

Cunningham,  414. 

State  v. 

Lazarre,   414. 

State  v. 

Davidson,  419,  420,  431. 

State  v. 

Lingerfelt,  414,  421  . 

State  v. 

Davis,  325. 

State  v. 

Lyons,  419. 

State  v. 

Denny,  436. 

State  v. 

Mackey,  423,  431. 

State  v. 

Dent,  331. 

State  v. 

Mann,  324. 

State  v. 

Doane,  431. 

State  v. 

Martin,  321,  425. 

State  v. 

Dodd,  333. 

State  v. 

McCorrnaek,  328. 

State  v. 

Drake,  243. 

State  v. 

Ma  this,  431. 

State  v. 

Dunn,  301. 

State  v. 

McGuire,  433. 

State  v. 

Edwards,  428. 

State  v. 

McMichael,  421. 

State   v 

.    Elliott,    246. 

State  v. 

McNeal,  428. 

State  v. 

Enslow,  333. 

State   v 

.   Meire,   422. 

State  v 

Farley,  420. 

State   v 

.Merrihew,   426. 

St»te  v. 

Findley,  55. 

State  v 

Meyer,  336. 

State  v 

Fitzpatrick,  324. 

State  v 

Miller,  420. 

State  v 

Flinn,  33,  334. 

State  v 

Mitchell,  260 

State  v 

French,  256. 

State  v 

.    Montague.    337. 

State  v. 

Gambs,  'I. 

State  v 

Morgan.  3^8. 

State  v. 

George,  144. 

State  v. 

Moore,  311,  316,  317. 

State  v 

Gibson,  271. 

State  v 

Moses,  333. 

State  v 

Glenn,  431. 

State  v 

Murman,  421,  431. 

State  v 

Gregory,  251,  25«. 

S(:it«'  V 

Nevin,  316. 

State  v. 

Hammill,  434. 

State    V 

.   Nichols,   325. 

TABLE    OF    CASKS. 
Reference  to  Sections. 


363 


State  v.   Nutter,  65. 

State  v.  O'Blemis,  420. 

State    v.    Ussier,   424. 

State  v.  Page,  202. 

State  v.  Pare,  242. 

State  v.   Peek,   51   ,52. 

State  v.  Pepper,  50,  51,  56,  315,  362. 

State  v.  Peterman,  261. 

State  v.  Peterson,  325. 

State  v.  Peyton,  52,  54. 

State  v.   Potter,   50   ,51. 

State  v.  Powell,  317,  325. 

State  v.  Pratt,  431. 

State  v.   Purely,   253. 

State  v.  Rhoades,  304. 

State  v.  Roberts,  328. 

State  v.  Rollins,  436. 

State  v.  Rosseau,  421. 

State  v.  Rubber  Manf.  Co.,  285. 

State  v.  Rucker,  249. 

State  v.  Sanders,  434,  436. 

State  v.  Sappington,  308. 

State  v.  Schexneider,  422,  434. 

State  v.   Scott,   253,   256,   258,  414, 

428,   429,   431. 
State  v.  Shackleford,  260. 
State  v.  Shelby,  242,  2 
State  v.  Slanter,  65. 
State  v.   Slevin,  264. 
State  v.  Sloan,  329. 
State  v.  Smith,  254,  337,  431. 
State  v.  Sooy,  307,  337. 
State  v.  Spear,  426,  427. 
State  v.  Stewart,  431. 
State  v.  Stephens,  423. 
State  v.  Stommel,  422. 
State  v.  Stroop,  248. 
State  v.  Sullivan,  305. 
State  v.  Supervisors,  51. 
State  v.  Sureties,  413. 
State  v.  Svvinney,  227. 
State  v.   Trahan,   421. 
State,  v.  Traphagen,  428,  434. 
State  v.  Tubba,  428. 
State  v.  Vion,  413. 
State   v.   Warren,   433. 


State  v.  Warrick,  436.  * 

State  v.   Watson,  332. 

v.    Wells,   305. 
State   v.    Whitson,    423. 
State  v.  Wilmer,  253,  255. 
State   v.    Wilson,    431. 
State  v.  Winninger,  431. 
State  v.  Wyant,  23. 
State  v.  Young,  49,  51,  56,  310. 
State  Panic  v.  Brennan,  325. 
State  Bank  v.   Burton-Gardner  Co., 

350. 
State  Bank  v.  Chetwood,  292. 
State  Bank  v.  Evans,  50. 
State  Bank  v.  Knotts,  371. 
State  Bank  v.  Smith,  137. 
State  Nat.  Bank  v.  Hayden,  357. 
Staughter   v.  Moore,   362. 
Stayner  v.  Joice,   105. 
Steadham  v.  Guthrie,  45. 
Stebbins  v.  Mitchell,   195. 
Stebbins  v.  Scott,  377,  384. 
Steckel  v.  Steckel,  178. 
Steele  v.  Auditor  General,  34. 
Steele  v.  Graves,  257. 
Steele  v.  Mealing,  208. 
Steele  v.  Souder,  90. 
Steelman  v.  Mattix,  411,  412,  430. 
Stell  v.  Dixon,  205. 
Stelle  v.  Lovejoy,  224. 
Stelle's  Case,  278. 
Stemmerman  v.  Lilienthal,  293. 
Stephens  v.  Graham,  102,  105. 
Stephenson  v.  Elliott,  11. 
Stern  v.  People,  69,  301,  314,  315. 
Sternbach  v.  Cried  man,   152. 
Sterns  v.  Marks.  365,  366. 
Stetson  v.  Bank,  77. 
Stevens  v.  Bigelow,  411. 
Stevens  v.  Cooper,   152. 
Stevens  v.  Gaylord,  252. 
Stevens  v.  Hay,   416. 
Stevens  v.  Lynch,  35.  37,  89. 
Stevens  v.  Stevens,  247. 
Stevens  v.  Tucker,  201,  209,  2G0. 
Stevenson  v.  Palmer,  220. 


364 


TABLE    OF    CASES. 

Reference  to  Sections. 


Stewart  v.  Baehm,  92. 

Stewart  v.  Campbell,  392. 

Stewart  v.  Goulden,   196. 

Stewart  v.  Johnson,  260,  274. 

Stewart  v.  McGuim,  411. 

Stewart  v.  Parker,  171. 

Stewart  v.  Sholl,  331. 

Stifer  v.  State,  325. 

Stillman  v.  Wickham,  100. 

Stillwell  v.  Aaron.  115,  171. 

Still  well  v.  How.  210. 

Stillwell  v.  Northrup,  357. 

Stinson  v.   Brennan,   188. 

St.  Louis  v.  Von  Phul,  112. 

Stockmyer  v.   Oertling,   194. 

Stockwell  v.  Robinson,  324. 

Stokes  v.  People,  423. 

Stone  v.  Farwell,  180.  195. 

Stone  v.  Hammell.  182,  190. 

Stone  v.  Rockefeller,  359. 

Stone  v.  Seymour,  337. 

Stone  v.  Walker,  399. 

Stone  v.  White,  110. 

Stoner  v.  Keith  County.  51,  55,  110. 

Stoner  v.  Milliken.  57,  78,  315. 

Stone  River   Nat.  Bank  v.  Walter, 

46. 
Storr  v.  Milliken,  356. 
Storts  v.   George,   152. 
Stout  v.  Vanse,  199. 
Stovall  v.   Adair,   210. 
Stovall  v.  Bank,  7,  63.  65,  194,  206, 

213,  252. 
StowaU  v.  Raymond,  347. 
strain  v.  Babb,  333. 
ire  v.  Lee,  84. 
^tnitton    v.    Hill,    392. 
Strawbridge    v.     Railroad    Co.,    72, 

285,  286. 
Streeper  v.  Sewing  Mach.  Co.,  66. 
Strong  v.  Foster,  97.  170. 
Strong  v.  Grannis.  33,  136. 
Strong  v.  Lyon.  354. 
Strong  v.  Taylor.  1!'.!. 
Btoart  v.  Lanca.-ter,  122. 
Studebaker  v.  Cody,  349. 


Studley  v.  Booth.  393. 
Stull  v.  Hance,  224. 
Stull  v.  Lee,  74. 
Stultz  v.  Zahn,  224. 
Sturtevant   v.   Randall,  210. 
Stuts   v.   Strayer,    101. 
Sublett  v.  McKinney,  14,  17S 
Succession  of  Voorheis,  90. 
Sullivan  v.  State,  329. 
Supervisors   v.   Bates,   311. 
Supervisors  v.  Kaine,  317. 
Sutherland  v.  Carr,  75. 
Southerland  v.  Coster,  398. 
Swalling  v.  King.  329. 
Swan  v.  Nesmith,  393. 
Swank  v.  State,  423,  427, 
Swartz   v.   Ballou,   56. 
Sweeney  v.  Lustfield,  163. 
Swerdofeger  v.  State,  419 
Sweet  v.  McAlister.  210 
Sweetzer  v.  French,  26. 
Swift   v.    State,    329. 
Swift  v.  Tyson.  39. 
Swire  v.  Boyers.  20.  ■* 
Sylvester  v.  Downer,    *4i\ 
Sylvester  v.  Downing,  353, 


T. 


Taft  v.  Gifford,  288. 
Taintor  v.  Taylor,  429. 
Talbut  v.  Whipple.  295. 
Talmadge  v.  Burlingham,  95. 
Tapley  v.  Martin.  2S8,  290,  291,  292, 

293. 
Tappan  v.  People.  320. 
Tarnier  v.  Nance,  226. 
Tarr  v.   Ravenscroft,   198. 
Tate  v.   James.   321. 
Tatum  v.   Brown.   347. 
Tatum  v.  Morgan.   363. 

ig  v.  Reid.  352,  353,  354,  358. 
Taylor  v.  Bank,  100,  151,  290. 
Taylor  v.  Delbois,  255. 


TABLE    OF    C.\ 
Reference  to  Sections. 


3*35 


Taylor  v.  Hand,  60. 

Taylor  v.  Johnson,  321. 

Taylor  v.  Lohman,  140. 

Taylor  v.  McCluney,  355. 

Taylor  v.  Parker,  324. 

Taylor  v.  Preston,  397. 

Taylor  v.  Ross,  349. 

Taylor  v.  State,  280. 

Taylor    v.    Taintor,    412,    414,    421, 

428,   429,   430. 
Taylor  v.  Tolman  Co.,  348. 
Taylor  Town  v.  Morter,  316. 
Tebbetts  v.  Dowd,  89. 
Tebo  v.  Betancourt,  222. 
Templeton  v.  Shakley,  130. 
Ten  Eyck  v.  Brown,  357. 
Tenney  v.  Prince,  341. 
Tessier  v.  Crowley,  27. 
Tevis  v.  Pandill,  336. 
Thayer  v.  Daniels,  192. 
Thayer  v.  Hollis,  243. 
Thomas  v.  Bank,  31. 
Thomas    v.    Bleakie,    51. 
Thomas   v.   Burrus,   60. 
Thomas  v.   Carter,   187. 
Thomas  v.  Cleveland,  137. 
Thomas  v.  Cole,  226. 
Thomas  v.  Cook,  382. 
Thomas   v.   Dodge,   390. 
Thomas  v.  Hubbell,   194. 
Thomas    v.    Liebke,    174. 
Thomas   v.   Markman,   238. 
Thomas  v.  Thompson,  252. 
Thompkins   v.   Hunter,    189. 
Thompson  v.  Armstrong,  359. 
Thompson  v.   Broad,   316. 
Thompson   v.   Dekum,   209. 
Thompson  v.  Denner,  272,  299. 
Thompson  v.  Glover,  45. 
Thompson  v.  Gray,  41. 
Thompson    v.    Lock,    294. 
Thompson  v.   Lockwood,   136. 
Thompson  v.  MacGregor,  273,  276. 
Thompson  v.   State,  305. 
Thompson  v.   Taylor,   14,   183. 
Thompson  v.  Thompson,  12,  35. 


Thompson   v.    Way,   405. 
Thompson  v.   Young,  72. 
Thornburg  v.  Madren,   147. 
Thornton  v.  Guice,  397. 
Thornton  v.  Williams,  39f>. 
Thurman  v.  Morgan,  272. 
Ihurston  v.   Prentiss,   185. 
Tibey  v.  Swenson,  174. 
Tidhall  v.  Young,  242. 
Tidioute  Savings  Bank  v.  Libby,  82, 

357. 
Tiernan  v.  Haw,  324. 
Tighe   v.    Morrison,    374,   382,    383, 

386. 
Tillson  v.   State,  52,   54. 
Tilton  v.   Cofield,  217. 
Tinker    v.    McCauley,    357. 
Tittle  v.  Bennett,  8. 
Tittle  v.  Sehmitt,  204. 
Tobey  v.  Ellis,   116. 
Tobias  v.  Rogers,  212. 
Todd  v.  Maxfield,  412. 
Tolbot  v.   Gay,   349. 
Toles  v.  Adee,   410,   411. 
Tolman  v.  Griffins,  362. 
Tom  v.  Goodrich,   11,   179,   198. 
Tomlinson  v.  Simpson,  66,  103. 
Tootle  v.   Elgutter,   356. 
Torp   v.   Gulseth,    154. 
Toulmin  v.   Copeland,   98. 
Towle  v.  Bradley,  27. 
Towle  v.  Towle,  252. 
Towne  v.  Ammidown,  23,  249. 
Townsend  v.  Everett,  302. 
Townsend  v.  Long,   12. 
Townsend  v.  Wagon  Co.,  708. 
Townsend   v.   White,   3S3. 
Townsend  Nat.  Bank  v.  Jones,  217. 
Tracy  v.  Cord,  251. 
Tracy  v.  Goodwin,   321,   324. 
Train  v.   Gold,   341. 
Trammell  v.   Swan,   126. 
Travelers'  Ins.  Co.  v.  Mays,  124. 
Treweek  v.  Howard,  251. 
Trient  v.  Enslen.  223. 
Trotter  v.  Strong,  95. 


3G 


TABLE    OF    CASES. 
Reference  to  Sections. 


Trudean  v.  Poutre,  385. 
True  v.   Fuller,   357. 
Trumbull    Co.    v.    Horner,    61. 
Trustees   v.   Gilliford,   362. 
Trustees   v.   Sheik,   52,   54. 
Trustees  v.  Smith,  303. 
Trustees  v.  Southard,  145. 
Tryner  v.   Hamilton,  261. 
Tucker   v.   Blandin,   357. 
Tucker  v.  People,  242,  258. 
Tucker  v.  State,  32. 
Tucker  v.  White,  218. 
Tudor  v.  DeLong,   189. 
Tudor  v.  Goodloe,   115. 
Tunbridge  v.  Smith,  337. 
Turner  v.  Collier,  325. 
Turner  v.  Hubbell,  401. 
Turner  v.  Killian,  324. 
Turner  v.  Sesson,  327. 
Turner  v.  Teague,  338. 
Turner   v.   Williams,   375. 
Tuscumbia  v.  Rhodes,  144. 
Tutt  v.  Thornton,   163,   178. 
Tuttle   v.    Bartholomey,    357. 
Tuttle  v.  Binney,  357. 
Twiss  v.  Association,  28,  30. 
Twohy  v.  McMurran,  340. 


U. 


Uhler  v.  Applegate,  114. 

Uhler  v.  Bank,  341. 

Ulster  Co.  Sav.  Bank  v.  Ostrander, 

70. 
Underwood  v.  Hossack,  41,  341. 


Un 
Un 
Un 
Un 
Un 
Un 
TJn 
Un 
Un 
Un 


on  Bank  v.  Coster,   355. 

on  Bank  v.  Forrest,  297. 

on  Bank  v.  Ridgely,  298. 

on  Town  v.  Smith,  316. 

on  Trust  Co.  v.  Motor  Co.,  361. 

ted  Life  Ins.  Co.  v.  Salmon,  51. 

ted  States  v.  Adams,  316. 

toe]  States  v.  Allsburg,  1,  94. 

tori  Statos  v.  Arnold.  319. 

twl    States   v.   Averill.    ?,n0. 


United  States  v.  Bafkland,  427,  430. 


United    States   v.   Bradley,    59,   60, 

309. 
United  States  v.  Boyd,  260,  285,  302, 

314. 
United  States  v.  Broadhead,  318. 
United    States    v.    Cheeseman,    310, 

337. 
United  States  v.  Curtis,  183,  319. 
United  States  v.  Cushman,  68. 
United  States  v.  Dashiel,  316. 
United  States  v.  Dunbar,  431. 
United  States  v.  Giles,  276. 
United  States  v.  Goldstein,  431. 
United  States  v.  Hine,  324. 
United  States  v.  Hodges,  116,  123. 
United   States  v.   Kirkpatrick,   313, 

314. 
United  States  v.  Lancaster,  418. 
United  States  v.  Linn,  35,  44,  213. 
United  States  v.  McClashire,  434. 
United  States  v.  Morgan,  316. 
United  States  v.  Nicholl,  70. 
United  States  v.  Poulson,  319. 
United  States  v.  Prescott,  316. 
United  States  v.  Preston,  432. 
United  States  v.  Price,  86. 
United  States  v.  Rogers,  309. 
United    States   v.    Ryder,    338,   413, 

415,  432. 
United  States  v.  Simmons,  415,  416. 
United  States  v.  Stone,  337. 
United  States  v.  Thomas,  316. 
United    States   v.   Tingey,   60,   259, 

309. 
United  States  v.  Trust  Co.,  113. 
United  States  v.  Van  Forsen,  429. 
United  States  v.  Van  Zandt,  314. 
United  States  v.  Watts,  316. 
United  States  v.  Whitten,  314. 
United   States   Glass   Co.   v.   Bottle 

Co.,    102. 
United  States  Glass  Co.  v.  Mathews, 

104. 
University    of    Cambridge   v.    Bald- 

win,  84. 
1L  rmston  v.  State,  70,  75. 


TABLE    OF    CASES. 


367 


Reference  to  Sections. 


V. 


Yaltz  v.  Harris,  348. 

Van  Alstyne  v.  Sorley,  14. 

Vance  v.  Hair,  90. 

Vance  v.  Lancaster,   1S4. 

Vancil  v.  Hogler,  114. 

Vandergazelle   v.   Rodgers,  411. 

Van  Derveer  v.  Wright,  89. 

Van  Etten   v.   Commonwealth,    333. 

Van  Etten  v.  Koster,   144. 

Van  Keuren  v.  Parmalee,  90. 

Van  Patten  v.  Beals,  25. 

Van  Pelt  v.  Little,  324. 

Van  Petten  v.  Richardson,  196. 

Van  Sickle  v.  Buffalo  Co.,  69,  301. 

Van  Slyke  v.  Bush,  277. 

Vaughn  v.  Smith,  392,  393. 

Veach  v.  Rice.  249,  257. 

Veazie  v.  Willis,  78,  35) 

Vest  v.  Voss,  157. 

Viele  v.  Hoag,  116,  193. 

Villars  v.  Polner,  134. 

Vivian  v.  Otis,  273,  302.    , 

Vliet  v.  Wyckoff,  201. 

Vogel  v.  Melmes,  382,  383. 

Voltz  v.   Bank,   109. 

Voorhies  v.  Atlee,  359,  360.  * 

Vorhis  v.  State,  2G3,  306.       ■ 

Voris  v.  Loan  Asso.,  377. 

Voss  v.  Bank,  99. 

Vosa  v.  Lewis,  200. 


W. 


Waddell  v.  Bradway,  62. 
Wade  v.  Creighton,  210. 
Wade  v.  Graham,  253. 
Wade  v.  Mt.  Sterling,  292. 
Wadsworth  v.  Cheney,  217. 
Wagmire  v.  State,  325. 
Wagoner  v.  Dyer,  133. 
Wagoner  v.  Watts,  92. 
Wain  v.  Walters,  39. 


Wait  v.  Wait,  379. 

Waleh  v.  Miller,  133. 

Waleh  v.  Seymour,  282. 

Waldrip  v.   Black,   186. 

Walker  v.  Commonwealth,  433. 

Walker  v.  Dicks,  144,   159. 

Walker  v.  Fleming,  393. 

Walker   v.   Forbes,   353,   355. 

Walker  v.  Hall,  256. 

Walker  v.  Hill,  388,  391,  393,  398. 

Walker  v.  Holmes,  27. 

Walker  v.  Patillo,  255. 

Walker  v.  People,  421. 

Walker  v.  State,  423. 

Walker  v.  Sherman,  44. 

Walker  v.  Waterman,  407. 

Wallace  v.  Jewell,  110. 

Wallace  v.  Scoles,  27. 

Walmerhausen  v.  Gullick,  202,  211. 

Walrath  v.  Thompson,  363. 

Walsh  v.  Miller,  281. 

Walsh  v.   People,   325. 

Walsh  v.  Schulz,  412. 

Walters  v.  Swallow,  122. 

Walters-Cates    v.    Wilkinson,     329, 

332. 
Walton  v.  Mascall,   122. 
Wandlandt  v.   Sohre,  20. 
Wappello  Co.  v.  Bigham,  282,  305. 
Warl  v.  Churn,  52. 
Ward  v.  Colquitt,  435. 
Ward  v.  School  Dist.,  317. 
Ward  v.  Stahl,  277. 
Ward  v.  State,  311. 
Ward  v.  Stout,    14,   171. 
Ward  v.  Tinkham,  257. 
Warden  v.  Ryan.  67,  100. 
Ware  v.  Allen,  51. 
Ware   v.    Stephenson,    381. 
Ware  v.  West,  395. 
Warner  v.    Cameron,   226. 
Warner  v.  Morrison.  3,   194,  203. 
Warren  v.  Abbott,  382. 
Warren  v.   Gilmer,   411. 
Warren  v.  Tobacco  Exchange,  78. 
Warren  Bank  v.  Bank,  336. 


368 


TABLE    OF    CASES. 


Reference  to  Sections. 


Warwick    v.    State,    244. 
Waseca  Co.  v.  Sheehan,  314. 
Wash    v.    State,    437. 
Washburn  v.  Blundell,   174. 
Washington  Bank  v.  Shurtleff,  169. 
Washington  Co.  v.  Ins.  Co.,  299. 
Washington  Ice  Co.  v.  Webster,  238. 
Wasland  v.  Tucker,  152. 
Waterbury  v.  Andrews,  126. 
Waterman  v.  Clark,  144. 
Waterman  v.  Vose,  107. 
Water  Power  Co.  v.  Brown,  210. 
Waters  v.  Carroll,  332. 
Waters  v.  Creagh,  148. 
Waters  v.  Riley,  86,  201. 
Watertown  F.  Ins.  Co.  v.  Simmons, 

127,  143,  288,  290,  291. 
Waterville   Bank  v.  Redington,   58. 
Watkins  v.  Sands,  379. 
Watkins  v.  Shaw,  255. 
Watson  v.  Whitten,  253. 
Wattles  v.  Hyde,  252. 
Watts  v.  Shuttleworth,  130. 
Waughop  v.   Bartlett,  90,   128,   167, 

172,  192. 
Waukford  v.  Waukford,  251. 
Way  v.  Reed,  111. 
Way  v.  Wright,  428. 
Wayne  v.  Bank,  140,  287,  288,  291. 
Weakly  v.  Bell,  122. 
Weatherwax  v.  State,  420. 
Weaver   v.   Shyrock,   86. 
Weaver  v.  Thornton,  265. 
Weaver  v.  Wood,  341. 
Webb    v.    Auspack,    311. 
Webb  v.  Hewitt,  116. 
Webber  v.  Webber,  151. 
Webster  v.  Cobb,  357. 
Webster  v.  Fleming,  11,  12,  13,  358. 
Webster  Co.  v.  Hutchinson,  66,  69. 
Weddington  v.  Commonwealth,  434. 
Weed  v.  Grant,  362. 
Weed    Sewing   Mach.    Co.   r.    Aber- 

reicht,  122. 
Weed  Sewing  Mach.  Co.  v.  Maxwell, 

376. 


Weems  v.  Lathrop,  271,  274. 
Wehr  v.  German  Congregation,  108, 

104. 
Weidneyer  v.  Landon,  202. 
Weisel  v.  Spence,  392. 
Weisenborn  v.   People,   329. 
Welch  v.  Hubschmitt,  67,  138. 
Welch  v.  Marvin,  398. 
Welch  v.   Seymour,   70,   305. 
Wellington  v.  Apthorp,  341. 
Wella  v.  Hurst,  122. 
Wells  v.  McCoy,  431. 
Wells  v.  Miller,  194. 
Wells  v.  Ross,  41. 
Wells  v.  Williams,  79. 
Welsh  v.  Ebersole,  339. 
Wendling  v.  Taylor,  114. 
Wennall  v.  Adney,  343. 
Wesley  Church  v.  Moore,  192. 
West  v.  Brison,   147. 
West  v.   Colquitt,  426. 
West  v.  O'Hara,  398. 
Western,  etc.,   Ins.   Co.  v.   Clinton/ 

287. 
Westfall  v.  Parsons,  374. 
Westmoreland   v.    Porter,    374,    377» 

392.  396. 
Weston  v.  Barton.  84. 
Weston  v.  Chamberlin.  210. 
Wetherby  v.  Mann,  195. 
Wetzel  v.  Sponsler,  146. 
Wetzel  v.  Waters,  219,  231. 
Whaler  v.  State,  424. 
Wheeler  v.  Bank,  78,  125. 
Wheeler  v.  Lewis,  359. 
Wheeler  v.  Mayfield,  340. 
Wheeler  v.  Rohrer,  171. 
Wheeler  v.  State,  426. 
Wheeling  v.   Black,   318. 
Whereatt  v.  Ellis,  74,  94,  183. 
Whilen  v.  Boyd,  66,  100,  103. 
Whipp  v.  Casey,  298. 
Whipperman  v.  Hardy,  36. 
Whipple  v.  People,  403. 
Whitaker  v.  Kirby,  57.  147,  148. 
Whitbeck  v.  Ramsey,  lr»2,  176,  187i 


TABLE    OF    CASES. 
Reference  to  Sections. 


369 


Whitcomb  v.  Whiting,  371. 

White  v.  Boone,  21. 

White  v.  Colton,  8. 

White  v.  Coventry,  61. 

White  v.  Ditson,  244,  255. 

White  v.  Duggan,  51,  56. 

White  v.  East  Saginaw,  310,  312. 

White  v.   Fox,  313. 

White  v.  French,  230. 

White  v.   Guest,   412. 

White  v.  Miller,  175,  180,  185. 

White  v.  Moe,   253. 

White  v.  Prigmon,  227. 

White  v.  Reed,  356. 

White  v.  Walker,  111. 

White  v.  Weatherbee,  60. 

Whitehead  v.  Woolfolk,  321. 

Whitehouse  v.  Glass,  183. 

Whitehouse  v.  Hanson,  194. 

Whitehurst  v.  Hyman,  377. 

Whitman  v.  Harriman,  208. 

White  Sewing  Mach.  Co.  v.  Hines, 

79,  83. 
Whitford  v.  Laidler,  51. 
Whitlock  v.  Doolittle,  90. 
Whitmer   v.    Frye,    107. 
Whitney  v.  Hale,  14. 
Whittier   v.   Gould,    20. 
Whittier  v.  Hemingway,  163. 
Whitworth  v.  Carter,  92. 
Whitworth  v.  Tilman,  183. 
Wickham  v.  Wickham,  394. 
Widener  v.  State,  334. 
Wiehler   v.   People,    324. 
Wier  Plow  Co.  v.  Walmsley,  100. 
Wiggins'  Appeal,  92. 
Wiggins  v.  Wells,  240. 
Wright  v.  Keyes,  213. 
Wildcat  Branch  v.  Ball,  54. 
Wild  v.  Home,  115. 
Wilde  v.  Baker,  274. 
Wilde  v.  Dudlow,  382,  383. 
Wildes  v.  Savage,  45. 
Wiler  v.  Henarie,  356. 
Wiley  v.  Bank,  29. 
Wiley  v.  Morr,  52. 

24 


Wilhelm  v.  Vosa,  891. 
Wilkinson   v.   Herd,   32. 
Wilks  v.  Adcock,  217. 
Williams   v.    Bank,    174. 
Williams   v.    Boyd,   21. 
Williams  v.  Gleam,  210. 
Williams  v.  Gooch,  117. 
Williams  v.  Harrison,  303. 
Williams  v.  Jenson,   114. 
Williams  v.  Marshall,  52. 
Williams  v.   McDaniel,  423. 
Williams  v.  Moreland,  252. 
Williams  v.  Morton,  310. 
Williams  v.  Nichols,   191. 
Williams  v.  Perkins,  40,  341 
Williams  v.  Rees,  211. 
Williams  v.  Riehl,   104. 
Williams  v.  Shelby,  431. 
Williams  v.  State,  260,  423. 
Williams  v.  Williams,  176,  192. 
Williamson  v.  Hill,  377,  396. 
Williamson  v.  Woodman,  60,  266. 
Willingham  v.  Trust  Co.,   152,   157. 
Willis  v.  Chowning,  172,  173. 
Willis  v.  Commonwealth,  421. 
Willis  v.  Crooker,  227,  411. 
Willoughby  v.  Irish,  90. 
Wills  v.  Cooper,  245. 
Wills  v.  Dill,  52. 
Wills  v.  Ross,  356,  398. 
Wills  v.  Shinn,  389. 
Wilmington,  etc.,  R.  R.  Co.  v.  Ling, 
288,  293.  » 

Wilson  v.  Bevans,  341,  384,  397. 
Wilson  v.  Bun.ey,  152. 
Wilson  v.  Crawford,  174,  176,  211. 
Wilson  v.  Foote,  113,  120. 
Wilson  v.  Hentges,  390. 
Wilson  v.  Monticello,  61. 
Wilson  v.  People,  424. 
Wilson  v.  Phillips,  152. 
Wilson  v.  Powers,  48. 
Wilson  v.  Stanton,  206. 
Wilson  v.  State,  :':0. 
Wilson   v.   Stilwell,    182. 
Wilson  v.  Tebbetts,  145. 


370 


TABLE    OF    CASES. 


Reference  to  Sections. 


Wilson  v.  Webber.  67,  112,  113. 
Wilson  v.  Wicbita  Co..  317. 
Wimberly  v.  Windbam,  5. 
Winans  v.  Cable,  etc..  Co.,  342. 
Wincbell  v.  Hicks.  90. 
Windell  v.  Hudson.  395. 
Wingate  v.  Wilson.  22**. 
Wininger  v.  State.  411.  431. 
Winn  v.  Sandford.  92.  376. 
Winship  v.  Bass.  251.  252. 
Winterfield  v.  Brewing  Co.,  30. 
Wintbrop  v.  Soule,  290. 
WTitherby  v.  Mann.  ISO. 
Wkhrow   v.    Commonwealth.    423. 
Witkowski   v.   Hern.   325. 
Wittmer  v.  Ellison,  115,  117. 
Wittmer  v.  Lumber  Co.,  30. 
Wise  v.  Miller.  348. 
Wise  v.   Sbepberd.   145. 
Wofford  v.  Unger.  371. 
Wolf  v.  Driggs.  50. 
Wolf  v.  Koppel,  394. 
Wolf  v.  Madden.  51,   147. 
Wolf  v.  Stover,  207. 
Wolfe  v.  State.  264. 
Wood  v.  Farvel.  320. 
Wood  v.  Fish,  74. 
Wood   v.   Fisk.   226. 
Wood  v.  Lelar.d.  173.  211. 
Wood  v.  Xewkirk.  46. 
Wood  v.  Scbool  Dist..  316. 
Wood  v.   Squires.   217. 
Wood  v.  Steele.  55.  103.  104,  107. 
Wood  v.  TunniclirT.  342. 
-  v.  Bank.  154. 

'man.  4.  348. 
Woodworth  v.   Bank.   108. 

y  v.  Cobb,  408. 
Wooley    v.    Moore,    357. 
Wooley  v.  I*ri- '-.  255. 

Van  Valkenburgb.  7C. 
Wool  folk  v.  Plar.t.   119. 

t  Rubber  Co.  v.  Banigan. 
•- 

'•:  v.  Hill.  341. 
gang  v.  Clipp.  253,  201. 


Worrall   v.   Munn,   50. 
Worrell  v.  Forsyth.    19. 
Worsham  v.  Stevens,   183. 
Wortbington  v.  Gay,   119 
Wray   v.    People.    434. 
Wright   v.    Butler.    176 
Wright  v.  Dyer.  349. 
Wright  v.  Griffith.  4.  348,  355. 
Wright  v.  Long.  251. 
Wright  v.  Morley.  12.  151. 
Wright  v.  Schmidt,  27. 
Wright  v.  Simpson,  290. 
Wyatt  v.  Hodson.  371. 
Wyke  v.  Rogers.   116. 
Wyman  v.  Goodrich.  390. 
Wyman  v.  Jones.   5. 
Wyman  v.  Robinson.  74.  269. 
Wyman  v.  Yeomans.  105, 
Wvnn  v.  Brooke,  1S3. 


Yale  v.  Edgerton.  397. 

Yates  v.  Wheelock.  92. 

Yallop  v.  Ebers,   15. 

Yancey  v.  Brown.  355. 

Yarbrough    v.    Commonwealth.  414, 

429. 
Yeoman  v.  Mueller.   381. 
York  Co.  v.  Watson.  317. 
York  County  Ins.  Co.  v.  Brooks,  57, 

315. 
Yorkshire,  etc..  Co.  v.  Maclure,  382. 
Yo*t  v.   State.  263. 
Young  v.  French.  381,  392. 
Young   v.    Morgan,    155. 
Youne  v.  People.  244. 
Young  v.  Shunt.  3.  203. 
Yount  v.  Carney,  326. 


Zabriskie  v.  Railroad  Co..  28,  365. 
Zietrler  v.  Commonwealth,  333, 
Zollickbofcr  v.  Setb,  201. 
Zue'.Hp  v.   Hemerlie,    192. 


INDEX. 

Reference  lo  Sections. 


ABSENCE, 

of  principal  from  State — effect  on  surety's  liability,  91. 

ACCEPTANCE. 

or  mortgagee  to  make  purchaser  principal,  13. 

of  draft  as  principal,   15. 

of  offer  to  forbear  necessary,  44. 

of  offer  to  pay  debt  of  another — when  necessary,  45. 

of  new  note — effect  on  surety,   122. 

of  obligee,  knowing  of  conditions,   129. 

promise  must  be  accepted  to  be  binding,  341. 

of  guaranty — when  necessary,  348. 

when  necessary — continuing  guaranty,  355. 

ACCEPTOR, 

of  a  bill  is  the  principal,   15,   16. 

ACCOMMODATION  TNDORSER, 

relation  of,  14. 

pledging  of  note,  87. 

remedies  of,   1S3. 

rights  to  purchase  the  note,  180. 

right  of  contribution,  206. 

ACCORD  AND  SATISFACTION, 

payment  of  judgment  by  one  co-surety  not  accord  and  satisfaction, 

194. 
by  principal,  295. 

ACCOUNTING, 

administrator  not  accounting  for  bis  debt  to  the  estate,  251,  252. 
failure  of  administrator  or  executor  to  account,  256. 
by  surety  of  deceased  guardian,  259. 
of  guardian,  261. 

of   guardian — discharge  of   surety,   263. 
of  guardian  with  ward  after  reaching  majority,  265. 
liability  of  sureties  on  receiver's  bond,  271. 

(371) 


372  INDEX. 

Reference  to  Sections. 
ACCOUNTING—  ( Continued ) . 

by  assignee — discharge  of  sureties,  280. 
officer  failing  to  account,  292. 

ACKNOWLEDGMENT, 

false  certificate  of,  by  clerk,  333. 

false  acknowledgment  by  justice  of  peace,  334. 

certifying  by  notary  public — grantor  being  absent,  336. 

certifying,  without  reading,  336. 

of  barred  debt,  as  to  guarantor,  371. 


ACTION, 


against  surety  and  principal,  1. 

by  mortgagee  against  purchaser  of  mortgaged  premises,  12. 

of  surety  against  principal  who  has  not  signed  the  bond,  52. 

on  bond — surety  denying  court's  jurisdiction,  62. 

legal  proceedings — order  of  liability  of  sureties,  73. 

covenant  not  to  sue,  120,  121. 

failure  of  creditor  to  sue  principal,  134. 

set-off  and  recoupment,  144. 

compelling  creditor  to  bring  suit,   145. 

compelling  creditor  to  resort  to  collaterals,  149. 

right  of  surety  to  defend,  150. 

successive  sureties  in  appeal,  168. 

surety's  defense,  170. 

by  creditors,  171. 

against  principal  by  surety,  176. 

what  action  the  surety  may  bring  against  the  principal,  178. 

when  surety's  right  is  complete,  182. 

when  surety  can  plead   usury,   185. 

what  amount  can  be  collected  from  principal  by  surety,  186, 

joint  suit  by  sureties,   187. 

how  much  surety  can  recover  from  principal,  188. 

payment  by  surety — principal  not  being  liable,  190. 

relief  of  surety  in  equity,  193. 

right  of  surety  to  compel  contribution,  194. 

enforcement  of  contribution  at  law,  196. 

enforcement  of  contribution  in  equity,  197. 

liability  to  contribute  is  several,  200. 

by  co-surety  before  payment  of  debt,  202. 

of  co-sureties  under  different  instruments,  203. 

may  compel  contribution — co-sureties,  205. 

defense  of   surety,  224. 

action  for  damages  by  officer,  230. 

when  suit  may  be  brought  for  breach  of  injunction  bond,  233. 


index.  3Y3 

Reference  to  Sections. 

ACTION—  ( Continued ) . 

when  action  lies  against  exemtor  or  administrator,  242. 

bring  action  by  joint  executor,  249. 

when  arises  against  surety  on  administrator's  bond,  258. 

when  arises  against  surety  on  guardian's  bond,  264. 

right  of,  against  sureties  on  receiver's  bond,  272. 

summary  action  against  surety  on  receiver's  bond,  272. 

covenant  not  to  sue,  294. 

on  officer's  bond,  298. 

condition  precedent — suit  against  clerk,  331. 

when  demand  is  necessary  before  bringing  suit— tax  collector,  337. 

by  assignee  of  guaranty,  357. 

by  assignee  of  guaranty  under  seal,  358. 

guaranty  of  collection — when  suit  must  be  brought,  359. 

guaranty  of  forged  signature— rights  of  action,  371. 

payment  of  verbal  guarantee — effect,  372. 

ACT  OF  GOD, 

di??harge  of  bail,  412. 
exoneration   of   bail   by,   428. 

AFFIRMATION, 

of  infant's  contract,  24. 

of  insane  person's  contract,  25. 

of  ultra  vires  contract,  30. 

of  attachment  judgment — liability  of  surety,  224. 

of  judgment  by  agreement,  228. 

ALLOWANCES. 

by  administrator  to  intestate's  family,  250. 

ALTERATIONS, 

of   note  or   bond   after   execution — effect,   55. 

of  principal's  contract,   100,   101. 

of  instrument — effect,   102. 

material  alterations,   103. 

of  commercial   paper,   104. 

of  date  of  instrument,  105. 

of  amount  of  instrument,   106. 

of  the  rate  of  interest,  107. 

changing  the  place  of  payment,  108. 

destroying  the  identity  of  the  contract,  109. 

addition   of  a   surety  to  a  note,   110. 

changing  the  contract  of  a  lease,  111. 


374  INDEX. 

Reference  to  Section*. 
ALTERATIONS—  ( Continued ) . 

of  note — payment  by  surety — right  to  contribution,  194. 
of  principal  contract — discharge  of  guarantor,  362. 

AMENDMENT, 

of  attachment  proceedings,  217. 
discharging  bail,  411. 

AMOUNT, 

alteration  of — effect,  106. 

what  surety  can  collect  from  principal,  186,  196. 

co-surety  paying  less  than  face  value — effect,  198. 

co-surety  may  limit  liability.  205. 

increase  of,  in  appeal — liability  of  sureties,  227. 

liability  of  surety  on  official  bond,  327. 

when  limited  in  guaranty.  354. 

in  letters  of  credit,  355. 

APPEALS, 

satisfaction  of  judgment — liability  of  surety,  224. 

to  special  court — change,  225. 

liability  of  sureties — joint  or  several,  226. 

judgment  varied  on  appeal,  228. 

successive  appeal.  229. 

by  surety  on  assignee's  bond,  278. 

duty  of  clerks  of  court,  333. 

in  case  of  forfeiture,  436. 

APPEARANCE, 

of  principal — liability  of  bail,  423. 
voluntary.   Df  principal — costs.  435. 

APPLICATION  OF  PAYMENTS, 

general  rule,  97. 

by  law,  98. 

of  debtor's  deposits,  99. 

APPOINTMENT. 

denyinp  valid  appointment  of  principal  by  surety— effect,  60. 

of  executor  who  owes  the  estate.  251,  232. 

of  agent  of  corporation — duration  of  liability,  282. 


INDEX.  075 

Reference  to  Sections. 
APPORTIONMENT, 

of  debt  among  solvent  sureties,  196. 

ARBITRATION, 

payment  of  amount — right  to  contribution,   194. 
without   surety's   consent,   241. 
discharge  of  bail,  411. 

ARRESTS, 

in  civil   action — bail,   404. 

by  bail  of  their  principal,  414. 

illegal — liability  of  bail,  424. 

of  principal  on  different  charge,  426. 

ASSIGNEE, 

liability  of  surety  on  assignee's  bond,  277. 

estoppel  of  surety  by  judgment  against  assignee,  278. 

giving  new  bond,  279. 

default  of,  280. 

discharge  of  surety,  281. 

of  guaranty,  357. 

of  guaranteed  notes,  364. 

converting  assignor's  property  into  money  to  pay  debt,  379. 

of  promissory  note,  390. 

ASSIGNMENT, 

of  lease — effect  on  surety,  111. 

of  principal — rights  of  surety  who  owes  principal,  162. 

of  note  to  surety  after  payment,  178. 

declared  void — effect  on  surety,  280. 

of  guaranty,  357. 

of  guarantied  paper,  365. 

of  promissory  note,  390. 

ASSUMPSIT, 

by  surety  against  principal,  178. 
right  of  co-surety  to  bring,  195. 
on  contracts  under  seal,  358. 

ASSUMPTION, 

of  mortgaged  debt  by  purchaser — rights  of  mortgagee,  12. 
of  partnership  debts  by  one  partner  after  dissolution,  20. 
of  liability  by  guarantor,  382. 


376  INDEX. 

Reference  to  Sections. 
ATTACHMENT, 

of  property  of  debtor  by  creditor — effect,  131. 

discharge  of  surety  by  dissolution  of,  213. 

exoneration  of  surety  on  attachment  bond,  214. 

non-suit  in,  effect  on  surety,  215. 

lien  being  discharged — bankruptcy  of  principal,  216. 

power  to  amend  proceedings  in  attachment  suit,  217. 

bringing  in  new  parties   defendants,  218. 

trespass  by  officer,  219. 

delivery  bond — rights  of  surety  as  to  property,  220. 

void  bond  in,  221. 

damages  in,  222. 

when  surety  is  concluded,  223. 

appeal  bond — discharge  of  surety,  224. 

neglect  of  officer,  325. 

wrongfully  issued  by  justice,  334. 

ATTORNEY  FEES, 

when  surety  may  collect  against  principal,  183. 

right  of  co-surety  to  collect,  196. 

co-surety  may  incur,  200. 

in  attachment — liability  of  surety,  224. 

ATTORNEYS- AT-LAW, 

becoming  surety  for  their  clients,  27. 

BAIL, 

are  sureties  with  same  liabilities,  73. 

definition  of,  402. 

distinction  as  to  mainpernors,  403. 

arrest  in  civil  actions,  404. 

obligation  of,  405. 

when  entitled  to  costs,  406. 

BAIL  IN  CIVIL  ACTIONS, 

arrests — bail,  404. 

obligation  of,  405. 

rights  of,  400. 

extent   of   liability,   407. 

discharge  of  principal  in  bankruptcy  or  insolvency,  408. 

payment  by  imprisonment  of  the  principal,  409. 

different  sets  of  bail,  410. 

exoneration  of,  411. 

exoneration  of  performance  of  condition,  412. 


inijkx.  377. 

Reference  to  Sections. 
BAIL  IN  CRIMINAL  ACTION, 

principal  in  custody  of  bail,  413. 

rights  and  liability  of  bail,  414. 

implied  contract  of  indemnity,  415. 

express  contract  of  indemnity  to  bail,  416. 

extent  of  bail's  liability,  417. 

costs,  418. 

joint  and  several  liability  of  bail,  419. 

effect  of  pardon,  420. 

delivery  of  principal  by  bail,  421. 

on  appeal — liability,  422. 

appearance  of  principal,  423. 

re-arresting  principal  on  the  same  charge,  424. 

giving  a  new  bond,  425. 

arresting  principal  on  different  charge,  426. 

bail  are  released  by  a  change  of  their  obligations,  427. 

exoneration  of  bail  by  act  of  God,  428. 

exoneration  of  bail  by  act  of  law,  429. 

exoneration  by  act  of  obligee,  430. 

exoneration  of  sureties  in  general,  431. 

subrogation  in  criminal  actions,  432. 

effect  of  forfeiture  of  bond,  433. 

Betting  aside  forfeiture,  434. 

voluntary  appearance  or  arrest  after  forfeiture— costs,  435. 

effect  of  remission  of  forfeiture,  436. 

taking  money  in  lieu  »f  bail,  437. 

BAILMENT, 

responsibility  of  officer  for  money  not  determined  by  rules  of,  316. 

BANK  DEPOSITS, 

application   of   debtor's   deposits,   99. 
illegal  deposits  by  public  officer,  301. 
by  public  officer — liability,  317. 
making  profit  on,  by  officer,  318. 
guaranty  of — illegal,   351. 

BANK  MESSENGER, 

liability   of  his   sureties,   285. 

BANKRUPTCY, 

of  debtor — effect  on  surety,  131. 

of  co-surety — liability  to  contribute,  212. 

of  principal  in  attachment — e.Tect,  216. 


.378  INDEX. 

Reference  to  Sections. 
BANKRUPTCY—  ( Continued ) . 

attachment — discharge  of  principal,  224. 
discharge  of  principal — rights  of  bail,  408. 

BILLS  AND  NOTES, 

execution  of  new  note,  8. 

made  payable  to  maker — rights  of  indorser,  17. 

joint  and  several  notes — liability  of  makers,  22. 

given  by  corporations,  28. 

indorsement  of,  before  and  after  execution,  36. 

surrendering  old  note  for  new,  37. 

consideration  for  extension  of  time  of  payment,  43. 

extension  of  time  of  payment — consideration,  46,  47,  48. 

alteration  of — effect,  55. 

filling  blanks   in,  5V . 

guaranty  may  cover  note  given  on  pre-existing  debt,  69. 

transfer  of  guarantied,  82. 

pledging  accommodation  note,  87. 

part  payment  by  joint  debtor — revival  of  debt,  90. 

conflict  of  laws,  93. 

payment  of — effect  on  surety,  94. 

liability  of  payment,  96. 

application   of   payments,   98,   99. 

alteration  of,  104. 

change  of  date,  105. 

changing  amount,  106. 

change  of  the  rate  of  interest,  107. 

changing  place  of  payment,   108. 

changing  identity  of  note,  109. 

addition  of  surety  to  a  note,  110. 

partial  payment  of,  as  consideration  for  extension  of  time,  114. 

payable  in  the  future — extension  of  time — rights  of  surety,  116. 

certainty  of  extension  of  time,  119. 

what  is  a  promise  to  extend  time  of  payment,  121. 

acceptance  of  new  note  by  creditor — effect  on  surety,  122. 

taking  as  collateral  security — effect  on  surety,  123. 

taking  judgment  against  one  of  several  makers,  124. 

fraud  in  the  extension  of  time — effect  on  surety,   125. 

when  note  must  be  presented  to  the  administrator  or  executor,  128. 

disaffirmance  by  infant — return  of  consideration,  135. 

payment  of — subrogation  of  surety,   154. 

payment  by  surety  of  a   surety,    165. 

payment  by  one  joint  debtor,  16C. 

surety  voluntarily  paying,  177. 

payment  by  surety — assignment,  178. 


INDEX.  379 

Reference  to  Sections. 
BILLS  AND  NOTES— (Continued). 

taken  by  creditor  from  on»  partner,  179.    * 

payment  by  surety's  note,  180. 

payment  by  accommodation  indorser,   186. 

alteration  of — payment  and  contribution,  194.\ 

payment  by  note — right  to  contribution,    195. 

payment  by  co-surety — right  to  contribution,   196. 

purchasing    note    of    principal    by    one    co-surety    at    a    discount — 

effect,  198. 
contribution  of  surety  of  a  surety  for  payment,   199. 
substitution  of  new  note — right  to  contribute,   204. 
rights  of  accommodation  indorsers,  206. 
parol  evidence  to  identify  surety,  210. 
parties  to — legal  effect  of  indorsement,  210. 
giving  note  by  administrator,  246. 

accord  and  satisfaction  of  officer  by  giving  his  note,  295. 
left  in  hands  of  justice  of  the  peace,  334. 
holder  of — notary's  certificate,  336. 

bank  receiving — -selecting  notary  to  protest — liability,  336. 
indorsement  before  and  after  delivery,  347. 
guaranty  of — illegal,  351. 
guaranty  of — negotiability,  357. 
guaranty  of  collection,  359. 

changing  debt  into  notes — effect  on  guarantor,  3C2. 
assignee's  rights,  364. 
guarauty  of — one  signature  forged,  366. 

executing  and  indorsing  for  third  party — statute  of  frauds,  389. 
assignment  of,  390. 

BLANKS, 

a  blank  piece  of  paper  signed  as  a  bond — effect,  52. 

filling  of,   56. 

filling  blanks  in  notes,  57. 

bond  signed  in  blank  by  surety,  298. 

signing  note  in  blank,  347. 

BONDS, 

successive  bonds,   9. 

of  public  officer — national  bank  as  surety,  29. 

delivery  in  escrow,  50. 

surety  signing  on  condition,  51. 

not   signed   by   principal,   52. 

surety's  name  not  in  the  body  of  the  bond,  ."3. 

principal's  name  in  bodv  of  the  bond,  but  not  subscribed,  54. 

alteration  of— effect,  55. 


380  INDEX. 

Reference  to  Sections. 
BONDS—  ( Continued ) . 

filling  blanks  of — surety's  liability,  56. 

surety  estopped  by  recitals  in,  59. 

estopped  to  deny  validity  of,  62. 

attacking  of,  in  collateral  proceedings,  63. 

liability  of  surety — term,  70,  71. 

surety  liable  only  for  penalty,  74. 

measure  of  surety's  liability,   75. 

death  of  surety — effect,  85. 

contractor's  bonds,  112,  113. 

taking  second  bond  as  collateral  security — effect  on  surety,  123. 

right  of  contribution  on  successive  bonds,  203. 

liability  of  surety  on  successive  bonds,  209. 

attachment  bonds — fcrmality.  213. 

exoneration  of  surety  on  attachment  bond,  214. 

non-suit  in  attachment — effect  on  surety.  215. 

redelivery  bond — bankruptcy  of  principal.  216. 

amendment  of  proceedings,  217. 

bringing  in  new   parties,   218. 

liability  of  surety  for  trespass  of  officer,  219. 

different  bonds — right  of  surety  as  to  attached  property,  220. 

void  bond  in  attachment,  221. 

damages  on  breach  of,  222. 

judgment  on  the  bond— liability  of  surety,  223. 

appeal  bonds — discharge  of  sureties,  224. 

appeal  bond — judgment  affirmed  in  another  court,  225. 

change  of  issue  on  appeal,  22G. 

increase  of  claim  on  appeal,   227. 

agreement  of  litigants,  228. 

successive  appeal  bonds,  229. 

provision    for    indemnity,    230. 

liability  on  indemnity  bonds,  231. 

injunction  bonds — liability  of  surety,  232. 

suit  on  injunction  bond,  233. 

injunction   bonds — liability  of   surety.   234. 

what  law  governs  injunction  bond,  235. 

liability  of  surety  on  replevin  bond,  238. 

breach  of  replevin  bond — discontinuance  of  suit,  239. 

varying  the  terms  in  replevin.  241. 

when  suit  lies  on  executor's  or  administrator's  bond.  242. 

administrator's  bond — income  from  real  estate.  24  !. 

liability  of  Burety  on  extra-territorial  acts  of  principal,  245. 

pnrety  liable  only   for  official   acts,  246. 

giving  new  bond.  247. 

liability  of  discharged  BUTety,  248. 

■ureties  on  joint  bonds,  249. 


INDEX.  381 

Reference  to  Sections. 

BONDS—  ( Continued ) . 

allowances    to     intestate's    widow    by    administrator — liability    of 

surety,  250. 
surety's  general  liability  on  administrator's  bond,  253. 
liability  of  surety — different  bonds,  254. 
principal  acting  in  official  capacity,  255. 
failure  of  administrator  to  return  inventory,  256. 
release  of  surety  on  administrator's  bond,  257. 
when  right  of  action  accrues  on  administrator's  bond,  258. 
general  liability  of  guardian's  sureties,  259. 
giving  additional  bond  by  guardian,  260. 
guardian  selling  real  estate — giving  new  bond,  261. 
discharge  of  surety — guardian's  bond,  262. 
termination  of  surety's  liability — guardian's  bond,  263. 
when  action  can  be  brought  on  guardian's  bond,  264. 
judgment  on  guardian's  bond — estoppel  of  surety,  265. 
estoppel  of  surety  by  recitals,  266. 
liability  of  joint  guardians,  267. 
joint  bond  of  guardians,  268. 

extent  of  surety's  liability  on  guardian's  bond,  269. 
recovery  against  surety,  270. 
liability  of  sureties  on  receiver's,  271. 

right  of  action  against  sureties  on  receiver's  bond,  272. 
of  receiver,  for  future  acts,  273. 
of  surety  on  receiver's  bond  for  funds,  274. 
new  bonds — liability  of  surety,  275. 
surety's  liability  on  receiver's  bond,  276. 
liability  of  surety  on  assignee's  bond,  277. 
extent  of  surety's  liability  on  assignee's  bond,  278. 
assignee  giving  new  bond,  279. 
default  of  assignee,  2S0. 
discharge  of  surety.  V2S1. 

duration  of  surety's  liability  on  private  official  bonds,  282. 
continuing  liability  of  surety  on  private  official  bonds,  283. 
restricting   surety's   liability   by   recitals   in  bond,   284. 
construction,  as  to  surety,  285. 
surety  cannot  be  bound  beyond  his  contract,  286. 
discharge  of  surety  by  fraud,  287. 
covering  prior  and  subsequent  defaults,  288. 
principal  his  own  successor,  289. 

continuing  principal  in  office  after  known  defaults,  290 
delinquent   obligee.   291. 
failure  to  discharge  delinquent,  292. 
failure  to  notify  surety  of  default,  293. 
covenant  not  to  sue  on,  294. 
accord  and  satisfaction,  295. 


$82  I^DEX. 

Reference  to  Sections. 
BONDS—  ( Continued ) . 

notice  of  surety's  withdrawal,  296. 

surety  discharged  by  acts  of  obligee,  297. 

action  on  the  bond,  298. 

sureties  concluded  by  recitals  in  officer's  bond,  299. 

surety's  liability  for  loss  of  money  by  officer,  300. 

liability  of  surety  on  official,  301. 

liability  of  surety  on  prior  defaults,  302. 

presumption  as  to  sureties  on  second  bond,  303. 

de  facto  official  bonds,  304. 

officer  holding  over,  305. 

death  of  officer,  306. 

money  used  to  cover  previous  delinquencies,  307. 

giving  second  bond  in  same  term,  308. 

giving  bond  without  statutory  authority,  309. 

general  and  special  bonds,  310. 

liable  for  official  acts:,  311. 

subsequently   imposed   duties,    312. 

subsequently  imposed  duties  by  the  legislature,  313. 

the  State  is  not  responsible  for  its  officers,  314. 

forgery  of  prior  surety's  name,  315. 

money  lost  by  principal,  316. 

depositing  public  money  in  bank,  317. 

making  profits  on  public  funds,   318. 

interest  recovered  after  breach,  319. 

surety's  liability  for  penalty,  320. 

estoppel  by  judgment  against  officer,  321. 

of  sheriffs  and  constable,  Z22. 

scope  of  liability — constables,  323. 

levy  on  wrong  property,  324. 

officer's  liability — ministerial  duties,  325. 

officer's  duty  to  State  and  to  persons,  326. 

limit  of  surety's  liability,  327. 

liability  of  surety  after  term  expires,  328. 

sureties'  liability  on  bonds  of  clerks,  329. 

compensation  of  clerk,  330. 

failure  of  clerk  to  pay  over,  331. 

money  paid  into  court,  332. 

delinquencies  of  clerks,  333. 

sureties  of  justice  of  the  peace,  334. 

sureties  of  police  officer,  .'>:!.r>. 

sureties  of  notary  public,  336. 

o*  tax  collector,  337. 

subrogation  under,  338. 

assignability  of.  357. 

not  in   form — common   law  bond,  405. 


INDEX.  383 

Reference  to  Sections. 
BONDS—  ( Continued ) . 

definition  of  bail  bond,  407. 

extent  of  bail's  liability,  417. 

giving  new  bond — liability  of  bail,  425. 

BOOKKEEPER, 

using  the  bank's  money,  285. 

BROKER, 

in  del  credere,  394. 
arrest  of — bail,  404. 

BUILDING  CONTRACTS, 

liability  of  surety,  112. 
consideration  of,  112. 
extension  of  time — effect,  113. 

CASHIER, 

transcending  his  powers — effect  as  to  sureties'  liability,  285, 
increase  of  capital  stock  of  bank — surety's  liability,  286. 
joint  action  against  cashier  and  sureties,  298. 
controlled  by  recitals  in  bond,  299. 

CHARTER, 

extending  charter  of  bank — effect  on  surety's  liability,  72. 
forfeiture  of — liability  of  surety,  297. 

CLERK, 

of  county — unofficial  acts — liability,  320. 
bond  of — surety's  liability,  329. 
employment  guarantied,  345. 
compensation  of,  330. 
failure  to  pay  over  to  successor,  331. 
money  paid  into  court,  332. 
delinquencies  of,  333. 

CO-GUARANTOR, 

release  of,  369. 

payment  by  one  co-guarantor,  372. 

COLLATERAL  PROCEEDINGS, 
attacking  bonds,  63. 


384  INDEX. 

Reference  to  Sections. 

COLLATERAL  SECURITY, 

taking  collateral  security  by  creditor — effect  on  surety,  123. 

surety  entitled  to,  130. 

creditor  must  collect,  132. 

substitution  of,  137, 

when  creditor  must  resort  to  collaterals,  149. 

in  hands  of  surety — application,  189. 

COLLATERAL  UNDERTAKING, 

of  surety  or  guarantor.  41. 

of  principal — effect,  104. 

by  contractor  and  principal,  113. 

COLLECTION, 

guaranty   of,    359. 

due  diligence  of  guarantee,  360. 

COLLECTOR, 

misappropriation  of  taxes.   307. 
special  and  general  bond,  312. 
extending  time  to  pay  taxes  to,  313. 
liability  of  sureties,  337. 
employment  guarantied,  345. 

COMPENSATION, 

of  clerk — excess,  330. 

CONCEALMENT, 

of  facts,  140. 

diligence  of  surety,  141. 

facts  not  connected  with  the  contract,  142. 

facts  developed  subsequent  to  the  contract,  143. 

of  obligee — effect  on  surety,  287. 

of  principal's  prior  defaults,  288. 

when  negligence  amounts  to,  291. 

failure  to  notify  surety  of  default,  293. 

CONCURRENT  CONTRACTS, 
tc  bind  the  surety,  39. 

CONDITIONAL  GUARANTY, 

definition  of,  339. 
terms  of,  340. 


INDEX.  385 

Reference  to  Sections. 

CONDITIONAL  GUARANTY—  ( Continued) . 

necessity  of  notice  in  absolute  guaranty,  348. 

guaranty  of  payment,  350. 

notice  to  guarantor,  352, 

notice  of  default,  353. 

continuing  guaranty,  354. 

letters  of  credit  as  a  continuing  guaranty,  355. 

when  guarantor  is  liable  on  absolute  guaranty,  359. 

CONDITION  PRECEDENT, 

institution  of  suit  against  clerk,  33L 

when  not  fulfilled,  350. 

as  to  guarantee's  bringing  suit,  360. 

CONFLICT  OF  LAWS, 

governs  suretyship  like  other  contracts,  93. 

CONSIDERATION, 

what  is,  35. 

for  indorsing  note  before  and  after  execution,  36. 

of  suretyship  must  be  legal,  38. 

when  it  supports  the  surety's  contract,  39. 

presumption  of,  39. 

question  of,  in  suretyship,  39. 

when  surety's  promise  is,  40. 

executed  consideration,  40. 

moral  obligation,  40. 

when  new  consideration  is  necessary,  40,  41. 

for  extension  of  time,  42,  43,  46. 

promise  to  pay  debt  of  another — notice  of  acceptance  of  offer,  45. 

for  extension  of  time,  46,  47,  48. 

in  building  contracts,  112. 

for  extension  of  time,  113. 

what  is,  for  extension  of  time,  114. 

usury  as  a  consideration  for  extension  of  time,  115. 

disaffirmance  of  contract — return  of  consideration,  135. 

payment  of  in  installments,  138. 

of  indemnity  contract,  189. 

payment  of  void  note — right  of  contribution,  194. 

for  bond,  213. 

illegal,  of  bank  as  to  deposits,  301.  « 

of  guaranty,  341. 

executory  consideration  in  guaranty,  342; 

moral  obligation  as — in  guaranty,  343. 
V 

25 


386  INDEX. 

Reference  to  Sections. 
CONSIDERATION—  (Continued ) . 

guaranties  are  of  two  kinds,  344. 

guaranties,  where  consideration  is  entire,  345. 

guaranty  when  consideration  passes  at  different  times,  u  i 

want  of — guaranty  contracts,  3U2. 

for  extension  of  time,  363. 

failure  of  in  guaranty,  366. 

to  bring  promise  under  the  statute  of  frauds,  375. 

new  consideration  in  guaranty,  377. 

for  promise  in  guaranty,  373. 

original  consideration  in  guaranty,  381. 

oral  promise  to  indemnify,  382. 

for  indemnity  contracts,  383. 

what  is  a  sufficient  consideration  to  pay  debt  of  another, 

for  release  of  lien — statute  of  frauds,  392. 

promise  to  pay  debt  of  another,  393. 

del  credere  contracts,  394. 

inuring  to  the  benefit  oi  the  promisor,  396. 

CONSOLIDATION, 

of  corporations — liability  of  surety,  282. 

CONSTRUCTION, 

of  contract — at  law,  67. 

of  contract — in  equity,  68. 

of  joint  obligations  as  several,  86. 

of  strictissimi  juris,  112. 

of  attachment  proceedings,  217. 

of  surety's  liability  on  injunction  bond,  232. 

of  law — injunction  bond,  236. 

of  surety's  contract  as  to  time,  285. 

of  surety's  contract  on  collector's  bond,  337. 

of  a  guaranty,  339. 

of  indorsement,  347. 

of  guaranty,  356. 

release  of  co-guarantor — effect,  369. 

lex  loci  contractus  governs,  370. 

among  bail,  415. 

CONTRACT, 

of  guarantor,  4. 

of  surety,  4. 

of  suretyship — how  created,  5. 

when  joint — who  are  principals,  22. 


INDEX.  ►  387 

Reference  to  Sections. 
CONTRACT—  ( Continued ) . 

of  infanta — voidable,  24. 

of  insane  persons,  25. 

of  suretyship  by  partners,  26. 

by  corporations,  2S, 

by  national  banks,  29. 

ultra  vires  contracts,  30. 

of  principal  under  duress,  33. 

consideration,  35. 

between  principal  and  surety — consideration,  35, 

illegality  of  consideration,  38. 

to  bind  the  surety,  39. 

to  forbear,  44. 

delivery  of,  49. 

Sunday  contract,  49. 

alteration  of  written  contracts — effect,  55. 

extent  of  surety's  contract,  66. 

construction — at  law,  67. 

construction  of  contract — in  equity,  68. 

interpretation  of,  70,  71,  72. 

construing  joint  obligation  as  several,  86. 

change  in  principal's  contract,  100. 

destroying  identity  of,  109. 

building  contract — liability  of  surety,  112. 

of  extension — valid  when,   121. 

disaffirmance  of — return  of  consideration,  135. 

where  the  law  enters  into,  161. 

taking  effect — between  surety  and  principal,  174, 

between  surety  and  principal,  186. 

of  indemnity — consideration  of,  189. 

for  bond,  213. 

covenant  not  to  sue,  294. 

accord  and  satisfaction,  295. 

of  the  state,  313. 

of  guaranty,  339. 

for  indorsement,  347. 

of  guarantor,  348. 

guaranty  of  payment,  349. 

conditional  guaranty,  350. 

guaranty  of  illegal  contract,  351. 

construction  of  guaranty,  356. 

assignment  of  guaranty,  357. 

under  seal — negotiability  of,  358. 

change  of — discharge  of  guarantor,  362. 

for  externum  of  time — ofTect  on  guarantor,  361. 

failure  of  consideration  in  guaranty,  366. 


388  INDEX. 

Reference  to  Sections. 

CONTRACT—  ( Continued ) . 

lex  loci  contractus  governs,  370. 

disability  of  principal  debtor  in  guaranty,  376. 

third  party  not  liable  in  guaranty,  379. 

original  consideration  in  guaranty,  381. 

oral  promise  to  indemnify,  382. 

indemnity  contracts  in  general,  383. 

what  is  a  sufficient  consideration  to  pay  debt  of  another,  384. 

of  novation — statute  of  frauds,  385. 

collateral  contracts,  386. 

"whether  within  the  statute  of  frauds,  388. 

of  contractor — payable  by  another,  391. 

relinquishment  of  lien,  392. 

del  credere  contracts,  394. 

to  whom  promise  must  be  made,  395. 

for  the  benefit  of  the  promisor,  396. 

special  promise — release  of  original  debtor,  397. 

sale  of  goods — liability  of  third  person,  398. 

joint  liability,  399. 

oral — insurance,  400. 

to  answer  for  the  torts  of  another,  401. 

express  contract  of  indemnity  to  bail,  416. 

CONTRACTOR, 

not  liable  for  sub-contractor's  employees,  79. 
payment  of  installments  in  advance,  103. 
liability  of,  1 12. 
paying  in  advance,  138. 
agreeing  to  pay  debt  of,  391. 

CONTRIBUTION, 

of  co-sureties,  7,  8. 

two  sets  of  sureties,  9. 

liability  of  subsequent  signer,   10. 

rights  of  surety  of  a  surety,  165. 

right  of  co-surety  to,  178. 

right  of — founded  upon  equity,  194. 

co-surety  paying  by  note — right  to  contribution,  195. 

right  to  enforce  at  law,  190. 

enforcement  in  equity,  197. 

by  surety  of  a  surety,   199. 

liability  to  contribute  is  several,  200. 

as  to  co-surety's  estate,  201. 

remedy  of  co-surety  for,  before  payment,  202. 

right  of,  under  different  instrument,  203. 


index.  389 

Reference  to  Sections. 

CONTRIBUTION—  ( Continued ) . 

obligation  must  be  the  same,  204. 

when  co-surety's  limits  his  liability,  205. 

of  accommodation  indorser,  206. 

sureties  in  legal  proceedings,  207. 

indemnity  to  one  surety,  208. 

as  to  successive  bonds,  209. 

parol  evidence  to  identify  co-surety,  210. 

running  of  the  statute  of  limitations,  211. 

bankruptcy  of  co-surety,  212. 

when  in  an  inverse  order,  260. 

CONVEYANCES, 

fraudulent  conveyance  by  principal — rights  of  surety,  160. 
surety  setting  aside  fraudulent  conveyance  of  principal,  193. 

CORONERS, 

liability  when  acting  as  sheriff,  324. 

CORPORATIONS, 

rights  to  contracts  as  sureties,  28. 

powers  of  national  banks,  29. 

implied  power  to  become  sureties,  31. 

consideration — ultra  vires  contracts,  35. 

when  surety  cannot  deny  incorporation  of,  61. 

appointment  of  agent — duration  of  liability,  282. 

restricting  sureties'  liability  by  recitals  in  bond,  284. 

increase  of  capital  stock,  28G. 

continuing  their  agent  in  office  after  defaults,  290. 

notice  of  surety's  withdrawal  from  bond  of  officer,  296. 

acts  of  corporation  may  discharge  surety  on  officer's  bond,  297. 

agent  of — loss  of  money,  300. 

COSTS, 

an  indefinite  suretyship  extends  to  all  accessories,  such  as  costs  and 

the  like,  76. 
when  surety  may  recover  from  principal,  183. 
sureties  agreeing  to  pay,  321. 
wrongfully  withdrawn  by  justice,  334. 
verbal  promise  to  pay,  384. 
liability  of  bail,  405. 
indemnity  to  bail,  416. 
follow  the  judgment — bail,  418. 
after  forfeiture,  435. 


390  I2TOJ3X. 

Reference  to  Sections, 
CO-SURETY, 

who  is,  3. 

obligation  of,  7. 

in  joint  contracts,  22. 

release  of,  133. 

notice  by  one  to  creditor  to  sue,  145. 

payment  of  debt  by — rights  of  subrogation,  166. 

rights  of,  to  contribution,  178. 

right  of — founded  on  equity,  194. 

paying  debt  by  note — right  of  contribution,  195. 

enforcement  of  contribution  at  law,  196. 

enforcement  of  contributiou  in  equity,  197. 

cannot  speculate  to  the  injury  of  his  co-surety,  198. 

liability  to  contribute  is  several,  200. 

liability  of  surety's  estate  to  contribution,  201. 

remedy  of,  before  payment,  202. 

right  of  contribution  under  different  instruments,  203. 

obligation  must  be  the  same  to  create  contribution,  204. 

may  limit  liability,  205. 

rights  of  accommodation  indorsers,  206. 

in  legal  proceedings — contribution  of,  207. 

indemnity  to  one  surety,  208. 

contribution  on  successive  bonds,  209. 

parol  evidence  to  identify  a  co-surety,  210. 

running  of  the  statute  of  limitations,  211. 

bankruptcy  of — right  to  contribute,  212. 

COVENAN1, 

not  to  sue  one  of  two  or  more  joint  debtors — effect,  120. 
express  covenant  not  to  sue — may  be  broken — effect,  121. 
not  to  sue  one  surety,  294. 

DAMAGES, 

against  liability,  65. 

measure  of  surety's  liability,  75. 

surety  is  liable  for  liquidated  damages,  76. 

when  must  show  damages  before  bringing  suit,  182. 

when  surety  may  recover  costs  and  interest,  183. 

when  surety  can  recover  consequential,  184. 

in  attachment — breach  of  bond,  222. 

in  indemnity  bonds,  230. 

discontinuance  of  replevin  suit,  2fs9. 

joint  guardian — suit  against  co-guardian,  267. 

when  sureties  have  agreed  to  pay,  321. 

surety's  liability  for,  327. 


INDEX.  391 

Reference  to  Sections. 
DAMAGES—  (Continued). 

resulting  in  taking  insufficient  appeal  bond,  333. 
by  justice  of  the  peace,  334. 
resulting  from  notary's  wrong,  336. 


DATE, 


change  of — effect  on  surety,  105. 

of  surety's  discharge  on  guardian's  bond,  262. 

running  of  the  statute  of  limitations — guardian's  account,  263. 

of  indorsement,  34V. 

HEATH, 

of  surety — effect,  84,  85. 

of  principal — effect,  17^.. 

of  co-surety — right  of  contribution  against  estate,  201. 

of  principal  on  appeal,  226. 

of  executor  or  administrator,  242. 

of  joint  administrator,  249. 

of  guardian,  259. 

of  surety  on  guardian's  bond,  263. 

of  public  officer,  306. 

notice  of,  termination  of  guaranty,  344. 

continuing  guaranty — termination  of,  346. 

of  guarantor — effect,  345. 

of  principal,  release  of  bail,  412. 

DEBT, 

whether  obligation  of  surety  or  indorser  is  a  debt,  6. 

reduced  to  judgment — relation  between  surety  and  principal,  C4. 

revival   of,   89. 

pre-existing,  as  consideration  in  guaranty,  342. 

DECREE, 

for  deficiency — joint  debtors,  124. 

of  court  against  receiver — estoppel  of  surety,  273. 

estoppel  of  surety — assignee,  278. 

BE  FACTO  OFFICER, 

liability  of  his  sureties,  304. 

DEFALCATION, 

of  principal — known  to  obligee,  127. 


392  INDEX. 

Reference  to  Sections. 

DEFAULTS, 

surety's  liability  for  past  defaults  of  principal,  69. 

of  principal — surety's  liability,  75. 

of  principal — notice  to  surety,  88. 

of  principal — known  to  obligee — effect  on  surety,  127. 

of  principal — payment  by  surety,  177. 

of  executor  or  administrator,  when  a  breach,  242. 

of  assignee,  280. 

prior  defaults  of  principal,  288. 

continuing  principal  in  office  after  known  defaults,  290 

failure  to  discharge  principal  for  defaults,  291,  292. 

failure  to  notify  surety  of,  293. 

liability  of  surety  for  prior  defaults,  302. 

of  public  officer,  must  be  official,  311. 

of  principal — notice  to  guarantor,  348.  / 

notice  of,  to  guarantor,  352. 

notice  of — how  given,  353. 

DEL  CREDERE, 

under  statute  of  frauds,  394. 

DELIVERY, 

of  note  after  execution — subsequent  signing  by  surety— considera- 
tion, 36. 
of  contract,  49. 
to  one  of  several  obligees,  49. 
in  escrow,  50. 

wrongful  delivery  by  principal,  51. 
of  imperfect  instrument,  52. 
of  notice  to  creditor  to  sue,  145. 
waiving — delivery  of  property  in  attachment,  214. 
of  note  before  and  after  indorsement,  347. 

DEVASTAVIT, 

by  administrator — right  of  action  against  surety,  258, 

DEVISEE, 

executor  as — liability  of  surety,  246, 

DISABILITY, 

of  principal — effect,  92. 

conflict  of  laws,  93. 

of  principal — effect  on  surety,  135. 


INDEX.  393 

Reference  to  Sections. 
DISABILITY—  ( Continued ) . 

of  principal — liability  of  surety,  190. 
of  principal  debtor  in  guaranty,  370. 
of  third  party  in  guaranty,  379. 

DISAFFIRMANCE, 

of  contract  after  disability  of  party  is  removed— effect,  135. 

DISCHARGE, 

of  principal — effect  on  surety,  92. 

of  surety,  94. 

after  judgment— rights  of  surety,  95. 

legality  of  payment,  96. 

application  of  payments,  97. 

application  of  payment  by  law,  98. 

note  payable  to  bank— application  of  debtor's  deposit,  99. 

change  in  the  principals  contract,  100. 

when  the  surety  is  not  discharged  by  change  of  contract,  101. 

alteration  of  the  instrument,  102. 

material  alteration,  103. 

alteration  of  commercial  instruments,  104. 

change  of  date,  105. 

alteration  of  amount,  106. 

alteration  of  the  note  as  to  interest,  107. 

change  of  place  of  payment,  108. 

destroying  the  identity  of  the  contract,  109. 

addition  of  3urety  to  a  note,  110. 

changing  lease,  111. 

building  contracts,  112. 

extension  of  time  of  payment,  113. 

consideration,  114. 

usurious  contracts,  115. 

reserving  remedy,  116. 

extension  of  time,  117. 

waiver  of,  118. 

extension  for  a  definite  time,  119. 

giving  time  to  one  of  two  or  more  sureties,  120. 

what  is  an  extension  of  time,  121. 

accepting  new  note,  122. 

taking  collateral  security,  123. 

personal  judgment  for  deficiency  in  foreclosure,  124. 

fraud — extension  of  time,  125. 

fraud  to  induce  surety  to  sign  contract,  126. 

notiee  to  creditors  of  principal  debtor's  dishonesty,  127. 

by  negligence  of  creditor,  128. 


394  INDEX. 

Reference  to  Sections. 
DISCHARGE —  ( Continued ) . 

surety  signing  upon  condition,  129. 

creditor  surrendering  security,  130. 

releasing  attached  property,  131. 

creditor  failing  to  apply  securities,  132. 

by  release  of  co-surety,  133. 

failure  of  creditor  to  sue  principal,  134. 

disaffirmance  of  contract  by  principal,  135. 

fraud  upon  the  principal,   136. 

substitution  of  securities,  137. 

payment  of  consideration  in  installments,  138. 

tender  of  payment,  139. 

parol  promise  of  creditor  to  look  to  principal  only,  147. 

creditor  informing  surety  that  the  debt  is  paid,  148. 

surety  discharged  by  acts  of  the  creditor,  150. 

defense  of  surety,  170. 

of  eo-suretv  in  bankruptcy — effect  on  contribution,  212. 

of  surety  on  attachment  bond,  213. 

exoneration  of  surety.  214. 

of  surety  on  administrator's  bond,  257. 

of   surety   on  guardian's  bond,   262. 

of  sureties — giving  new  bond  by  receiver,  275. 

of  assignee's  sureties,  280. 

of  surety  by  fraud,  287. 

giving  Second  bond,  30S. 

of  guarantor  for  want  of  notice  of  default,  352. 

of  guarantor,  360. 

of  guarantor  by  negligence  of  guarantee.  361. 

of  guarantor  by  change  in  the  principal  contract,  362. 

of  guarantor  by  extension  of  time, 

of  guarantor  by  negligence  of  guarantee,  i 

of  guarantor  by  fraud  and  duress  of  guarantee,  365. 

of  bail,  406. 

DISHONESTY. 

of  principal — known  to  obligee.  127. 
as  to  concealments.  141. 
concealment  of  facts.  143. 
of  principal  known  to  obligee,  290. 


DRAFTS. 


acceptor  is  principal.  15. 

oral  promise  to  make — statute  of  frauds,  3S9. 


INDEX.  395 

■Reference  to  Sections. 
DURESS, 

of  principal,  32. 

eil'ect  on  surety,  32,  92. 

personal  to  the  party  under  it,  136. 

by  guarantee — effect,  365. 

in  obtaining  guaranty,  376. 

EMBEZZLEMENT, 

contract  not  to  prosecute — illegality  of  consideration,  38. 
by  officer — concealment  of  by  obligee,  292. 
of  officer  on  general  bond,  312. 

EMPLOYMENT, 

changing  employment — liability  of  surety,  72. 
additional  employment,  79. 
default  of  principal  in,  88. 
dishonesty  of  creditor,  143. 
guarantied — liability,  345. 

ENLISTMENT, 

of  principal — exoneration  of  bail,  4 
of  principal — liability  of  bail,  431. 

EQUITABLE  CONVERSION, 

by  administrator  or  executor — liability  of  surety,  244. 

ERASURE, 

of  forged  surety's  name,  315. 

ESCAPE, 

when  sheriff  is  liable,  323. 

of  principal  after  forfeiture,  424. 

of  principal — re-arrest — liability,  425. 

ESCROW, 

delivery  of  instrument,  50. 

KSTOPPEL, 

of  surety  to  deny  recitals  in  the  instrument,  59. 

by  judgment,  65. 

of  creditor  to  collect  from  surety,  148. 

of  surety  by  judgment  against  bis  principal,  237,  238,  243. 


396  INDEX. 

Reference  to  Sections. 
ESTOPPEL—  ( Continued ) . 

of  surety  of  guardian  by  judgment,  265. 

of  surety  by  recitals  in  bond,  266. 

of  surety  on  assignee's  bond,  278. 

of  surety  on  de  facto  officer's  bond,  304. 

of  surety  by  judgment  against  officer,  321. 

EXECUTED  CONSIDERATION, 

to  support  a  subsequent  promise,  40. 
when  no  part  is  executory,  41. 

EXECUTED  CONTRACT, 

when  the  consideration  is  executed  and  not  executory,  40,  41. 

EXECUTION, 

taking  debtor's  property — effect,  131. 

release  of  levy  of — benefiting  surety,  137. 

levy  on  realty,  224. 

levy  on  exempt  property,  231. 

levied  on  exempt  property,  324. 

failure  of  clerk  to  issue,  333. 

EXECUTION  OF  CONTRACT. 

/■  .. 

when   principal   fa'ils    to   execute   contract — effect,    52. 

surety  signing  with  expectation  of  others  signing,  52. 

surety's  name  not  appearing  in  body  of  the  bond — effect,  53* 

principal  not  signing,  54. 

consideration,  35. 

indorsing  notes  before  and  after  execution,  36. 

surrender  of  old  note  for  new  note,  37. 

the  consideration  must  be  legal,  38. 

concurrent  contracts,  39. 

surety's  promise  being  the  inducement,  40. 

executed  contract,  41. 

extension  of  time — promise  of  third  person  to  pay,  42. 

agreement  to  forbear  for  an  indefinite  time,  43. 

an  agreement  must  be  made  to  forbear,  44. 

offer  to  become  surety  for  another,  45. 

extension  of  time — agreement  to  pay  interest,  46. 

both  parties  must  agree,  47. 

extension  of  time  by  paying  interest — contrary  doctrine,  48. 

delivery  of  contract,  49. 

delivery  in  escrow,  50. 


INDEX.  397 

Reference  to  Sections. 

EXECUTION  OF  CONTRACT— (Continued), 
wrongful  delivery  by  principal,  51. 
imperfect  instrument,  52. 

surety's  name  not  appearing  in  the  body  of  the  instrument,  53. 
principal  not  signing— name  in  the  body  of  the  instrument,  54. 
alteration  of  the  instrument,  55. 
filling  blanks— as  to  surety's  liability,  56. 
filling  blanks — negotiable  paper,  57. 
surety  signing  as  principal,  58. 

estoppel  of  surety  to  deny  recitals  in  the  instrument,  59. 
surety  denying  valid  appointment  of  principal,  60. 
right  of  surety  to  deny  incorporation  of  obligee,  61. 
denying  court's  jurisdiction,  62. 
attacking  bond  in  collateral  proceedings,  63. 
effect  of  judgment  on  surety's  liability,  64,  65. 
when  surety  may  avoid,  126. 
of  guaranty,  331,  341. 
executory  consideration  in  guaranty,  342. 

EXECUTORS  AND  ADMINISTRATORS, 

how  liable,  23. 

when  note  of  decedent  must  be  presented  to,  128. 

discharge  of — right  of  contribution  against  heirs,  201. 

right  of  contribution  of  sureties  on  successive  bonds,  203. 

liability  of  sureties  on  different  bonds  of  executor,  209. 

death  of  principal  on  appeal — substitution  of  administrator,  226. 

liability  of  their  sureties,  242. 

judgment   against — conclusive   as   to   surety,   243. 

income  of  real  estate — liability  for,  244. 

sale  of  real  estate  beyond  jurisdiction  of  court,  245. 

surety  liable  only  for  principal's  lawful  acts,  246. 

giving  new  and  additional  bond,  247. 

liability  of  discharged  surety,  248. 

sureties  on  joint  bonds,  249. 

death  of  joint  principal,  249. 

making  allowances  to  widow,  250. 

being  debtor  to  the  estate,  251. 

common  law  rule  as  to  executor  being  debtor  to  the  estate,  252. 

general  liability  of  sureties.  253. 

same  person  administrator  and  executor  of  same  estate,  254. 

acting  in  fiduciary  capacity,  255. 

failure  to  return  inventory,  256. 

release  of  surety,  257. 

as  to  continuing  guaranty,  368. 


398  index. 

Reference  to  Sections. 
EXEMPTIONS, 

of  principal — how  determined,   161. 

EXEMPT  PROPERTY, 

levy  on  by  sheriff,  231,  324. 

EXONERATION, 

of  bail,  411. 

by  performance  of  condition,  412. 

of  bail  by  act  of  God,  428. 

of  bail  by  act  of  law,  429. 

of  bail  by  act  of  obligee,  430. 

EXPENSES, 

when   co-surety   can  collect   traveling  expenses,    196. 
when  co-surety  may  recover,  200. 

EXTENSION  OF  TIME, 

as  consideration  to  third  party,  42. 

for  an  indefinite  time,  43. 

agreement  to  pay  interest,  46,  48. 

mutuality  of  agreement,  47. 

of  building  contracts,  113. 

of  paying  usury,   115. 

reservation  of  remedy  against  surety,  116. 

without  consent  of  surety,  117. 

to  be  valid,  must  be  certain,  119. 

giving  time  to  one  of  two  or  more  sureties — effect,  120. 

what  is  a  promise  for,  121. 

of  time  by  fraud  of  principal,  125. 

of  term  of  office  by  legislature.  305. 

as  consideration  for  guaranty,  341. 

discharge  of  guarantor,  303. 

a?  a  consideration  in  guaranty,  375. 

EXTRADTTiON, 

of  principal — efTort   on  bail,  427. 
exoneration  of  surety,  429. 


K.  f'TOR. 


in  del  credere  contracts,  394. 
arrest  of — bail,  404. 


IKDEX.  390 

Ileference  to  Sections. 
FEDFRAL  OFFICER, 

principal  arrested  bv — liability  of  bail,  426. 

FIDUCIARI.^, 

administrator  acting  as  such,  255. 

when  executor  should  act — death  of  guarantor,  368. 

arrest  of — bail,  404. 

FORBEARANCE, 

for  a  reasonable  time,  43. 

taking  new  security,  43. 

agreement  to  forbear,  44. 

creditor's  failure  to  sue  principal,  134. 

to  inform  surety  of  principal's  dishonesty,  143. 

as  consideration  for  guaranty,  341. 

of  guarantee  to  bring  suit,  360. 

of  creditor — right  of  guarantor,  363. 

FORECLOSURE, 

taking  deficiency  judgment  against  one  joint  debtor — effect,  124. 

FOREIGN  ADMINISTRATOR, 

liability  of  surety,  260. 

FORFEITURE, 

of  bail  bond — liability,  419. 
effect  of  pardon,  420. 
effect  of,  on  bond,  433. 
setting  aside,  434. 
arrest  after  forfeiture,  435. 
effect  of  remission,  436. 

FORGERY, 

when  it  releases  surety,  78. 

taking  a  forged  note  for  a  prior  one  secured — effect  on  surety,  125. 

of  prior  surety's  name,  315. 

impeachment  of   sealed   contract,   341. 

guaranty  of  note — names  forged, '351. 

FRAUD, 

notice  of,  by  obligee,  51. 

construction  of  joint  obligation,  86. 

of  principal  unknown  to  creditor — effect  on  surety,  125. 


400.  INDEX. 

Reference  to  Sections. 

FRAUD — (Continued). 

to  induce  surety  to  sign,  126. 

upon  the  principal — effect,  136. 

upon  the  surety,  140. 

concealment  of  facts,  141. 

fraudulent  conveyance  by  principal — rights  of  surety,   160. 

surety  setting  aside  sale  of  principal,  193. 

of  co-surety — right  to  contribution,  202. 

order  of  probate  court  against  guardian — estoppel  of  surety,  265* 

discharge  of  surety,  287. 

obtaining  surety  by  fraud,  288. 

when  mere  laches  of  the  obligee  is  not,  293. 

of  guarantee — effect,  365. 

in  the  execution  of  promise,  376. 

arrest  for — bail,  404. 

of  creditor — release  of  bail,  411. 

FUNDS, 

misappropriation  of,  by  principal — surety's  liability,  75. 
increase  of — liability  of  surety,  76. 
raised  by  surety — appropriation  of,  96. 
joint  fund  for  payment  of  joint  debt,  187. 
conversion  of,  by  administrator,  257. 
of  surety  of  receiver  for  funds  in  his  hands,  274. 
making  profits  on  public  funds,  318. 
misappropriation  of,  by  clerk,  329. 

GENERAL  AND  SPECIAL  GUARANTIES, 

distinction  of,  340. 

CRANTEE, 

of  mortgaged  premises — relation  to  mortgagee,  II. 

GRANTOR, 

of  mortgaged  premises  as  surety,   11. 
subsequent  undertaking,  41. 

certifying  acknowledgment  of,  who  is  absent,  336. 
liability  of,  339. 

GUARANTEE, 

qualified  changed  to  absolute,  109. 
rights  of,  340. 

consideration  between  parties,  341. 
pre-existing  debt,  342. 


INDEX.  401 

Reference  to  Sections. 

GUARANTEE—  ( Continued ) . 

when  consideration  is  a  moral  obligation,  343. 

kinds  of  consideration,  344. 

when  the  consideration  is  entire,  345. 

when  consideration  passes  at  different  times,  346. 

when  acceptance  is  necessary,  348. 

payment  to — guarantied,  349. 

what  is  due  diligence  of,  360. 

negligence  of — discharge  of  guarantor,  3G1. 

delay  to  enforce  payment,  363. 

loss  of  securities — effect  on  right  of  guarantor,  364. 

fraud  and  duress  of,  365. 

death  of  guarantor,  notice,  368. 

accepting  instrument,  369. 

running  of  the  statute  of  limitations,  371. 

CUARANTOR, 

distinguished  from  surety,  4. 

contract  of,  4. 

indorsing  note  before  and  after  execution — consideration.  36. 

presumption  of  consideration  for  contract,  39. 

of  payment  of  rent,  82. 

revocation  of  guaranty,  87. 

making  a  surety  of,  109. 

interposing  fraud  of  principal  to  avoid  payment,  126. 

may  impose  condition.   129. 

payment  of  note — subrogation,  169. 

parol  evidence  to  show,  210. 

rights  of,  340. 

consideration  for  contract,  341. 

Of  pre-existing  debt,  342. 

moral   consideration,   when  a   consideration,   343. 

kinds  of  guaranty,  344. 

when  the  consideration  is  entire,  345. 

death  of — effect,  346. 

when   consideration   passes   at  different  times,   347. 

endorsement  of,  before  and  after  delivery  of  note,  347. 

when  acceptance  of  guaranty  is  necessary,  348. 

guaranty  of  payment,  349. 

of  illegal  note,  351. 

notice  of  default,  352. 

what  is  reasonable  notice  of  default,  353. 

when  amount  is  limited,  354. 

construction  of  his  contract,  356. 

assignee  of  guaranty — rights,  357. 

26 


402  INDEX. 

Reference  to  Sections. 

GUARANTOR—  ( Continued ) . 

guaranty  of  collection,  359. 

discharge  of,  by  negligence  of  guarantee,  360,   361. 

discharge  of  by  change  in  the  principal  contract,  362. 

discharge  by  extension  of  time,  383. 

discharge  of,  by  negligent  loss  of  securities,  364. 

discharge  by  fraud  and  duress,  365. 

of  defective  contract,  366. 

revocation  of  guaranty,  3G7. 

death  of,  368. 

released  co-guarantor,  369. 

running  of  the  statute  of  limitations,  371. 

payment  of  debt  by,  372. 

contract  under  the  statute  of  frauds,  373. 

when  within  the  statute  of  frauds,  374. 

effect  of  the  statute  of  frauds  on  contract,  375. 

principal  debtor  incapacitated,  376. 

new  consideration,  377. 

consideration  for  promise,  378. 

taking  debtor's  property,  379. 

third  party  incapacitated,  380. 

original  consideration,  381. 

parol  promise  to  indemnify,  382. 

indemnity  contracts,  383. 

what  is  a  sufficient  consideration  for  guaranty,  384, 

of  promissory  note,  390. 

in  del  credere,  394. 

GUARANTY, 

distinguished  from  suretyship,  4. 

of  payment,  4. 

of  collection,  4. 

of  national  banks,  29. 

subsequent — effect,  41. 

agreement  to  accept — when  necessary,  45. 

may  cover  pre-existing  debt,  69. 

as  to  transfer,  82. 

revocation  of,  87. 

on  condition,  129. 

definition  of,  339. 

classification  of.  as  to  nature,  340. 

consideration  of,  341. 

executory  consideration  for,  342. 

moral   obligation  as  consideration   Tor,  343- 

as  to  consideration — classes,  344. 


INDEX.  403 

Reference  to  Sections. 

GUARANTY—  ( Continued ) . 

wheie  consideration  is  entire,  345. 

where  consideration  passes  at  dilierent  times,  3io. 

indorsement  of  note  before  and  after  delivery  of  note,  347. 

when  acceptance  is  necessary,  348. 

of  payment,  349,  350. 

of  illegal  contracts,  351. 

construction  of,  356. 

negotiability  of,  357. 

under  seal — negotiability  of,  358. 

of  collection,  359. 

revocation  oi — dissolution  of  partnership,  361. 

covers  defects  in  the  original  contract,  366. 

death  of  guarantor,  368. 

lex  loci  contractus  governs,  370. 

running  of  the  statute  of  limitations,  371. 

payment  of  verbal  guaranty,  372. 

application  of  the  fourth  section  of  the  statute  oi  frauds,  373. 

under  statute  of  frauds,  374. 

effect  of  the  statute  of  frauds,  375. 

incapacity  of  principal  debtor,  376. 

new  consideration,  377. 

consideration  for  promise,  378. 

parol  agreement,  379. 

third  party  not  liable,  380. 

original  consideration,  381. 

oral  promise  to  indemnify,  382. 

indemnity  contracts,  383. 

what  is  a  sufficient  consideration  to  pay  debt  of  another,  384. 

of  promissory  note,  390. 

in  del  credere,  394. 

GUARDIAN  AND  WARD, 

administrator  acting  as  guardian— liability  of  sureties.  255. 

general  liability  of  surety,  259. 

giving  additional  bond,  260. 

selling  real  estate,  261. 

when  surety  is  discharged.  202. 

termination  of  surety's  liability,  263. 

when  action  arises  on  bond,  2G4. 

judgment  against — estoppel  of  surety.  265. 

estoppel  of  surety  by  recitals  in  bond,  266. 

joint  guardians — liability,  267. 

joint  bond — enforcement,  268. 

extent  of  surety's  liability,  269. 

revival  of  debt  by  surety,  270. 


404  INDEX. 

Reference  to  Sections. 

HABEAS  CORPUS. 

right  of  bail  to,  for  principal  in  another  county,  426. 

HE1R9, 

rights  of  contribution  against,  201. 

HOLDING  OYER, 

officer   holding  over — liability  of  surety.   305. 

HUSBAND  AND  WIFE, 

wife  mortgaging  her  property  to  secure  husband's  debts,   19. 
release  of  married  woman  as  surety — effect,  (&. 
mortgage  by — adding  wife's  name,   110. 
wite  giving  note  for  pre-existing  debt,  191. 

IGNORANCE  OF  THE  LAW, 

does  not  excuse  surety  or  principal,  37. 

ILLEGAL  CONTRACTS, 

liability  of  surety,  38. 

IMPERFECT  INSTRUMENT, 

liability  of  sureties.  52,  53,  54. 
filling  blanks.  55,  56. 
filling  blanks  in  notes,  57. 
surety  signing  as  principal,  58. 
common-law  bond,  405, 

IMPRISONMENT, 

in  civil  actions — bail,  404. 
payment  by,  409. 
of  principal — release  of  bail,  411. 
suspension  of — liability  of  bail.  420. 

INDEMNITY. 

whr-n  securities  are  given  for  indemnity  of  surety  only,  151. 

creditor  must  hold  securities  for  surety"s  indemnity.  152. 

appeal  bond — rights  of  oritrinal  surety.  168. 

wlirn  surety  indemnified  may  brin?  action,  182. 

when  surety  must  take  special    indemnity,   184. 

ri'_'lit    "f  BUrety  to  take  from  principal,   189. 

implied  promise  for,  by  principal,  192. 


INDEX.  405 

Reference  to  Sections.-, 

INDEMNITY—  ( Continued ) . 

to  one  co-surety,  208. 

bonds  for,  230. 

liability  of  surety,  231. 

of  surety  against  joint  guardian,  267. 

oral  promise  to  indemnify,  382. 

of  surety — statute  of  frauds,  395. 

right  of  bail  to,  406. 

to  bail  in  criminal  action,  415. 

express  contract — to  bail,  416. 

INDICTMENT, 

of  sheriff  for  neglect,  326. 

entering  in  succeeding  term — liability  of  bail,  427. 

loss  of — effect,  431. 

INDORSEMENT, 

of  notes  before  and  after  execution,  36. 

of  creditor  on  note — consideration  for  extension  of  time,  48. 

creditor  taking  note  with  forged  indorsement — waiver,   125. 

parol  evidence  to  explain  blank  indorsement,  210. 

before  and   after  delivery  of  note,   347. 

of  guaranty  on  note,  357. 

of  notes  for  another — statute  of  frauds,  389. 

INDORSER, 

whether  obligation  of  indorser  is  a  debt,  6. 

accommodation  indorser — relation  of,  14,   15. 

of  bills  of  exchange  and  promissory  notes — liability,  16. 

of  notes  made  payable  to  maker — rights  of,  17. 

of  note  before  and  after  execution — liability,  36. 

not  released  by  holder  of  bill  taking  collateral  security,  123. 

different  from  surety,  178. 

cannot  recover  costs  against  the  drawer    183. 

parol  evidence  to  show,  210. 

contract  of.  339. 

before  and  after  delivery  of  note,  347. 

promising  to  indorse — statute  of  frauds,  389. 


406  INDEX. 

Reference  to  Sections, 

INDUCEMENT, 

surety's  promise  being  the  inducement  for  the  contract — considera- 
tion, 40. 
when  collateral  undertaking  is  not  the  inducement,  41. 
of  surety  to  extend  time — effect,   117. 
a3  consideration  in  guaranty,  341. 
pre-existing  debt  as  consideration,  342. 
for  a  p -omise  to  indemnify,  382. 

INTANTS, 

liability  as  sureties,  24. 
disaffirmance  of  contract — effect,  135. 
guaranty  of  infant's  contract,  356. 
guaranty  of  contract,  376. 
disability — guaranty  contracts,  380. 

INJUNCTION, 

liability  of  surety  on,  232. 

when  surety  is  liable,  233. 

when  liability  of  sureties  is  joint  and  several,  231. 

what  law  governs,  235. 

dissolution  by  series  of  orders,  236. 

decree   of — concludes   surety,   237. 

INSOLVENCY, 

of  debtor — effect  on  surety,  131. 

of  parties  in  suretyship — right  to  set-off  and  recoupment,  144. 

of  principal — rights  of  surety,  159. 

payment  of  judgment  by  surety  against  principal,  153. 

right  of  insolvent  at  common  law  to  make  preferences,  189. 

insolvency  of  co-surety  who  has  paid  debt  by  his  note,  195. 

apportionment  of  debt  among  solvent  sureties,  196. 

excluding  insolvent  co-sureties  in  contribution,  196,  197. 

of  principal — attachment,  216. 

new  bond — insolvent  surety,  279. 

guaranty  of  collection — insolvency  of  principal,  359. 

when  guarantee  must  show  insolvency  of  principal,  360. 

discharge  of  principal — right  of  bail,  408. 

INSTALLMENTS, 

payable  in  advance — effect,  67. 

payment  of  rent  in  installments — liability  of  surety,  81,  82. 

payable  in  advance — building  contracts,  103. 

paying  in  advance,  138. 

when  surety  may  pay  the  debt  by  installments.  176. 

payment  of  debt— when  statute  of  limitations  runs,  211. 

agreement  that  judgment  may  be  paid  in  installments,  228. 


INDEX.  407. 

Reference  to  Sections. 

INSURANCE, 

oral  contract  of — statute  of  frauds,  400. 

INTEREST, 

agreement  to  pay  interest  to  extend  time  of  payment,  46.«  - 

express  promise  to  pay — extension  of  time,  48. 

when  surety  is  liable  for,  74,  70. 

changing  rate  of — surety's  liability,  107. 

usurious,  as  a  consideration  for  extension  of  time,  115. 

taking  in  advance  for  extension  of  time — effect,  121. 

when  surety  may  recover  from  principal,  18V 

for  breach  of  receiver's  bond,  276. 

taking,  on  bank  deposit  by  officer,  318- 

recovered  after  breach,  319. 

on  penalty — official  bond,  327. 

guaranty  of  note,  351. 

agreement  to  pay  in  advance — consideration,  375. 

liability  of  bail,  405. 

INVENTORY, 

administrator  not  including  his  debt  to  the  estate — effect,  251,  252. 

JOINT  BONDS, 

of  guardians — liability,  268. 

JOINT  DEBTORS, 

part  payment  by  one  of  several  joint  debtors — effect,  90. 

liability  severally  and  jointly,  91. 

adding  signature  of  surety  to  note — effect,  104. 

giving  time  to  one  or  more — effect  on  the  others,  120. 

foreclosure — deficiency  judgment  against  one,  124. 

release  of  one  joint  debtor  releases  all,  133. 

payment  of  judgment  by  surety,  163. 

one  compelled  to  pay  more  than  his  share — rights  of  subrogation,  167. 

parol  evidence  to  show  that  one  signed  as  surety,   171. 

joint  sureties  making  partial  payments,  176. 

payment  of  note  by  one,  178. 

when  joint  sureties  may  bring  a  joint  action,  187. 

right  of  co-surety  against  co-surety,  196,  197. 

right  of  contribution  between,  211. 

joint  sureties  on  appeal — liability,  226. 

on  successive  appeal  bonds,  229. 

sureties  on  joint  bonds,  249. 

joint  guardians — liability,  267. 


'408  INDEX. 

Reference  to  Sections. 
JOIXT  DEBTORS—  (Continued). 

covenant  not  to  sue  one  surety.  294. 

joint  action  against  cashier  and  his  sureties,  298. 

indorsers  of  notes,  347. 

as  to  principal  and  guarantor,  348. 

release  of  co-guarantor,  369. 

revival  of  barred  debt  at  common  law,  371. 

joint  liability,  399. 

ioint  and  several  liability  of  bail.  419,  431. 

JOINT  GUARDIANS, 
liability  of,  267. 

JUDGMENT, 

relation  between  surety  and  principal  after,  64. 

against  principal — effect  on  surety,  65. 

when  conclusive  on  surety,  65. 

discharge  of  surety  after,  95. 

debtors — extending  time  of  payment  as  to  one  of  joint  debtors,  120. 

for  deficiency  in  foreclosure,  124. 

judgment  against  debtor  and  surety — release  of  debtor — effect,  132. 

irregularly  obtained  against  principal — right  of  surety,  150. 

payment  by  surety — rights  of,  163. 

rights  of  sureties,  168. 

against  the  surety  alone.  171. 

payment  of  joint  judgment,   187. 

payment  by  surety,  188. 

payment  by  co-surety — right  to  contribution,  194. 

when  co-surety  is  concluded,  194. 

payment  by  solvent  sureties,  196. 

of  non-suit  in  attachment — effect  on  surety,  215. 

surety  concluded  in  attachment  by  judgment  against  principal,  223. 

satisfaction  of — discharge  of  surety,  224. 

affirmance  by  another   court,   225. 

change  on  appeal  of  issue,  226. 

increase  on  appeal,  227. 

successive  appeals,  228. 

against  principal — conclusive  on  surety.  237. 

surety  cannot  cr>  behind  judgment  on  replevin  bond,  238. 

discontinuing  replevin   - 

as  to  £niarriian  or  suretv.  264. 

estoppel  of  guardian's  surety  '  •• 

again-t  receiver — suit  against  surety.  272. 

against  receiver — conclusive  <^n  suretv.  273. 

against  receiver — effect  on  surety,  276. 


INDEX.  409 

Reference  to  Sections. 

JUDGMENT—  ( Continued ) . 

estoppel  of  surety  on  assignee's  bond,  278. 

declared  void — effect  on  sureties,  280. 

estoppel  of  surety  on  oliicial  bond,  321. 

on  penal  bond,  327. 

payment  to  clerk,  332. 

failure  to  enroll — liability  of  clerk,  333. 

neglect  of  justice  to  enter,  334. 

JUDICIAL  ACTS, 

public  officer  not  civilly  liable  for,  325,  326. 
sureties  not  liable  for — justice  of  the  peace,  334. 

JURISDICTION, 

of  court — denial  of,  by  surety,  62. 
of  law  courts  in  contribution,  194. 
sale  of  real  estate  outside  of,  245. 

JURY, 

will  find  amount  of  damages  on  penal  bond,  327. 
due  care  of  clerk — question  for  jury,  333. 

JUSTICE  OF  THE  PEACE, 

liability  of  sureties,  334. 

LANDLORD  AND  TENANT, 

rent  payable  in  installments — liability  of  surety,  81. 
tenant  holding  over,  82. 

LEASE, 

rent  payable  in  installments — liability  of  surety,  81. 

tenant  holding  over,  82. 

not  providing  that  surety  shall  not  be  liable  for  second  term,  82. 

defective — tenant  entering — effect,  82. 

reduction  of  rent — effect  on  tenant's  sureties,  101. 

changing  of — effect,  111. 

reduction  of  rent  with  surety's  consent,  111. 

guarantied — not  revocable,  345. 

guaranty  of — one  lessee's  name  omitted,  366. 

LEGISLATURE, 

changing  the  nature  of  the  principal's  office,  72. 
extending  charter  of  bank,  72. 


410  INDEX. 

Reference  to  Sections. 

LEGISLATURE—  ( Continued ) . 

increase  of  funds  in  the  hands  of  the  principal — liability,  76. 

increase  of  surety's  liability,  227. 

extending  time  of  office,  305. 

subsequently  imposed  duties  by,  312. 

time  of  court  changed — liability  of  bail,  423. 

LETTERS  OF  CREDIT, 

how  construed,  67. 

as  a  continuing  guaranty,  355. 

construction  of,  356. 

assignability  of,  357. 

lex  loci  contractus  governs,  370. 

LEX  FORI, 

remedy  of  mortgagee  against  grantee  of  mortgaged  premises,  13. 

LEX  LOCI  CONTRACTUS, 

governs  as  to  guaranty,  370. 

LIABILITY, 

of  principal,   1. 
of  surety,   1. 
of  co-sureties,  3,  7. 
nature  of  surety's  liability,  6. 
agreement  as  to  liability  among  sureties,  10. 
change  of,  by  agreement  among  principal  debtors,  21. 
of  joint  executors  and  administrators,  23. 
for  collateral  undertaking,  40,  41. 
of  surety  when  instrument  is  imperfect,  52. 
of  surety  whose  name  does  not  appear  in  the  bond,  53. 
of  principal   whose  name  appears  in  the  bond  which  is  not  sub- 
scribed, 54. 
of  surety — after  filling  blanks,  56. 

of  surety  on  instrument  whose  blanks  have  been  filled  up,  57. 
of  surety  on  his  contract,  66. 
of  surety  in  contracts,  fi7,  68. 
of  surety  may  be  limited  to  a  fixed  time,  70,  71. 
condition  of  suretyship  changed,  72. 
two  sets  of  sureties — order  of  liability,   73. 
surety  liable  for  penalty,  74. 
liability  for  funds,  75,  76. 
surety  may  limit  his  liability,  77. 
of  surety  for  acts  of  principal  not  in  line  of  duty,  80. 


INDEX.  411 

Reference  to  Sections. 

LIABILITY—  ( Continued ) . 

of  surety — principal  associating  with  others,  83,  84. 

of  surety  on  building  contracts,  112. 

of  surety  of  a  surety,  165. 

of  principal  to  surety,  173. 

of  principal  to  surety  for  costs,  183. 

of  surety's  estate,  201.  * 

co-surety  may  limit,  205. 

of  accommodation  indorser,  206. 

of  surety  on  successive  bonds,  209. 

of  officer  and  surety  for  trespass,  231. 

liability  of  surety — when  joint  and  several,  234.  * 

of  surety  on  replevin  bond,  238. 

of  surety — discontinuance  of  replevin  suit,  239. 

of  discharged  surety,  248. 

of  sureties  for  debts  due  the  estate  by  the  administrator,  251,  252. 

general  liability  of  sureties  on  the  bonds  of  administrators,  253. 

of  joint  guardians,  267. 

extent  of,  on  guardian's  bond,  269. 

of  sureties  on  receiver's  bond,  271. 

extent  of,  on  receiver's  bond,  276. 

of  surety  on  assignee's  bond,  277. 

of  guarantor,  339. 

of  different  sets  of  sureties,  410. 

LIBEL, 

by  sheriff,  by  unofficial  acts,  323. 

LIEN, 

release  of,  by  creditor,  130. 

attachment  lien — insolvency  of  principal,  216. 

failure  to  enroll  a  judgment — liability  of  clerk,  333. 

of  surety,  unasserted,  338. 

relinquishment  of — statute  of^  frauds,  392. 

LIMITED  AND  CONTINUING  GUARANTY, 
distinction  of,  340. 
terminated  by  death,  346. 
revocation  of  continuing,  367. 
death  of  guarantor,  368. 
running  of  the  statute  of  limitations,  371* 

MAINPERNORS, 

definition,  403. 


412  INDEX. 

Reference  to  Sections. 

MARSHAL, 

wrongfully  levying  on  property,  324. 

MARSHALLING  DEBTS, 

creditor  secured  by  mortgage  on  surety's  property — rights  of  un- 
secured creditors,  151. 

MERGER, 

of  debt  in  judgment — effect,  95. 
of  first  and  second  bond,  308. 

MINISTERIAL  DUTIES, 

of  public  officers — what  are,  325. 
liability  of  clerk  for,  333. 
of  justice  of  the  peace,  334. 

MISAPPROPRIATION, 

of  funds  by  principal — surety's  liability,  75. 

of  funds  increased,  76. 

by  administrator,  253. 

of  clerk  of  court,  329. 

of  justice  of  the  peace,  334. 

of  tax  collector,  337. 

MISREPRESENTATION, 

by  creditor  or  third  party,  126. 

MOBS, 

liability  of  sheriff  for  suppressing,*-  326. 

MORAL  OBLIGATION, 

as  consideration  in  guaranty,  343. 

MORTGAGE, 

of  property  to  secure  debt  of  another,  18. 

of  wife's  separate  property  to  secure  husband's  debt,  19. 

taking  as  collateral  security — effect  on  surety,  123. 

foreclosure  of — deficiency  judgment — joint  debtors,  124. 

release  of,  by  creditor — rights  of  surety,  154. 

guaranty  of — assignability,  357. 

assignment — guaranty,  359. 

release  of,  by  mistake,  'M>4. 

given  to  indemnify  bail,  416. 


INDEX.  413 

Heference  to  Sections. 
MORTGAGEE, 

rights  against  mortgagor  and  grantee  of  premises,  11. 
rights  of,  in  law  and  in  equity,  as  to  grantee  of  premises,  12. 
must  assent  to  make  grantee  of  mortgaged  premises  as  principal,  13. 
secured  by  surety's  property — rights  of  other  creditors,  151. 
release  of  lien,  3'.)-!. 

MORTGAGOK, 

sale  of  mortgaged  premises — becoming  surety  of  grantee,  11. 
release  of  lien — statute  of  frauds,  392. 

NATIONAL  BANKS, 

right  to  contract  as  surety,  29. 
selection  of  notary — liability,  336. 

NEGLIGENCE, 

of  creditor  in  not  availing  himself  of  the  debtor's  property,  128. 

of  creditor  releases  surety,   132. 

of  guarantee,  360. 

due  diligence  in  collection,  363. 

negligent  loss  of  securities — effect  on  guarantor,  334. 

NON-COLLECTION, 

of  taxes — liability  of  surety,  337. 

NON-PAYMENT, 

of  sheriff  for  money  received,  325. 
of  note — protest,  336. 

NON-RESIDENTS, 

as  sureties,  33. 

notice  to  non-resident  principal,  146. 
co-surety — right  of  contribution,  197. 
liability  of  non-resident  surety,  200. 
of  maker  of  note — guaranty,  359. 

NON-SUIT, 

in  attachment — effect  on  surety,  215. 

may  be  set  aside — rights  of  surety  on  appeal,  228. 

NOTARY  PUBLIC, 

liability  of  sureties,  336. 


414  INDEX. 

Reference  to  Sections. 
NOTICE, 


as  to  surety,  4. 

as  to  guarantor,  4. 

to  indorser  of  note — when  required  for  non-payment,  16. 

of  acceptance  of  third  party's  offer  to  pay  debt  of  another,  45. 

of  surety's  death — effect,  85. 

termination  of  surety's  liability,  87. 

of  default — liability  of  obligee,  88. 

of  creditor  of  principal's  dishonesty — effect  on  surety,  127. 

to  creditor  to  collect  debt,  145. 

written  notice,  146. 

failure  to  notify  surety  of  principal's  default.  293. 

of  surety's  withdrawal  from  officer's  bond,  296. 

when  death  is — withdrawal  of  surety.  306. 

of  death — termination  of  guaranty,  344. 

of  death — continuing  guaranty,  346. 

of  default  of  principal,   348. 

in  guaranty  of  payment,  349. 

in  conditional  guaranty,  350. 

of  default  of  guaranty,  352. 

of  default — how   given.   353. 

to  maker  of  letter  of  credit,  355. 

of  death  of  guarantor,  368. 

NOVATION, 

not  within  the  statute  of  frauds,  385. 

NUDUM  PACTUM, 

agreement  to  extend  time  of  payment,  46. 

OFFER, 

to  become  surety — notice  of  acceptance,  45. 
mere  offer  to  guarantee — revocation  of,  87. 
of  guaranty — acceptance,  348. 

OFFICE, 

change  of  office — liability  of  surety,  72. 
increasing  duty  of  principal,  79,  80. 
defaults  in,  by  sheriff,  323. 

OR  ORDER, 

inserted  in  non-negotiable  note — elTect  on  surety,  109. 


INDEX.  415 

Reference  to  Sections. 
OVERPAYMENT, 

by  officer — liability,  325. 

PARDON, 

of  criminal — liability  for  costs,  418. 
effect  of,  420. 

PAROL  AGREEMENT, 

to  give  time  to  one  of  two  or  more  joint  debtors — effect,  120. 

by  creditor  to  look  to  the  principal  only,  147. 

of  litigants  in  attachment,  228. 

of  guaranty,  S72. 

in  case  of  guaranty,  379. 

to   indemnify,   382. 

to  pay  costs,  384. 

to  indorse  note  for  another — statute  of  frauds,  389. 

to  pay  debt  of  contractor,  391. 

to  pay  for  goods  of  another,  397. 

to  answer  for  the  torts  of  another,  401. 

PAROL  EVIDENCE, 

action  upon  special^ — setting  up  parol  agreement  to  show  exten- 
sion of  time,  117. 
to  show  one  signed  a*s  surety,  171. 
admissible  to  show  who  are  sureties,  210. 
cannot  vary  a  judgment,  321. 

PARTIES, 

surety  and  principal  joined  as  parties  defendants,  1. 

infants,  24. 

insane  persons,  25. 

partners,  26. 

attorneys-at-law,  27. 

corporations,  28. 

national  banks,  29. 

principal  under  duress,  32. 

non-residents,  33. 

surety  and  guaranty  companies,  34. 

legal  effect  of  indorsements  of,  210. 

bringing  in  new  parties  defendants  in  attachment,  218. 

substitution  of  new  parties  in  replevin  suit,  240. 

to  contract  of  novation,  385. 

incapacity  of — guaranty,  376,  380. 


^16  INDEX. 

Reference  to  Sections. 

PARTNERS, 

dissolution  of  partnership — assumption  of  debts  by  one  partner,  20. 

agreeing  among  themselves  to  change  liability,  21. 

contract  of  suretyship,  26. 

principal  becoming  partner,  79,  83. 

subrogation  of  surety,  153. 

surety  to  one  partner,  179. 

PARTNERSHIP, 

dissolution  of — partner  assuming  payment  of  debt,  20. 

partner's  authority,  26. 

principal  going  into  partnership,  83,  84. 

surety  for  specified  time,  100. 

subrogation  ot  surety,  153. 

surety  to  partner,  179. 

as  a  co-surety,  196. 

dissolution  of — revocation  of  guaranty,  361. 

PAYMENT, 

of  interest  in  advance  as  a  consideration  for  extension  of  time,  46. 

extension  of  time  for,  42,  43,  46,  47,  48,  89. 

part  payment  by  one  of  several  and  joint  debtor     90 

of  debt  discharges  surety,  94. 

legality  of — to  release  surety,  96. 

application  of,  97. 

application  by  law,  98. 

application  of  debtor's  deposits,  99. 

changing  place  of — effect,  108. 

extension  of  time — building  contract,  113. 

partial  payment  as  a  consideration  to  extend  time,  114 

usury  as  consideration  for  extension  of  time,  115. 

of  consideration  in  installments,  138. 

tender  of,  139. 

what  is,   158. 

by  one  standing  in  place  of  surety,  158. 

subrogation  of  surety's  securities,  151. 

by  surety — subrogation  to  creditor's  rights,  152. 

of  debt  by  surety — rights  of  subrogation,  153,  154. 

by  stranger — rights  of  subrogation,   155. 

rights  of  surety  after  payment  of  debt,  156. 

payment  must  be  made  at  law  before  subrogation,  157. 

rule  in  equity,  157. 

when  surety  owes  principal — rights  of  parties,  162. 

of  judgment  by  surety,  1<>3. 


INDEX.  417. 

Reference  to  Sections. 
PAYMENT—  ( Continued ) . 

by  surety — extent  of  subrogation,  1G4. 

by  surety  of  a  surety,  1G.">. 

by  surety  in  depreciated  money,  107. 

by  surety  before  due,   175. 

part  payment  by  surety,  176. 

surety  must  be  under  legal  obligations  to  pay,  177. 

by  surety — assignment,  178. 

by  giving  surety's  note,  180. 

out  of  surety's  property,   181. 

when  surety  may  bring  action  before  payment  of  debt,  182. 

of  note  by  surety — attorney  fees,  183. 

by  surety — consequential  damages,  184. 

of  usury  by  surety,  185. 

by  surety  of  less  amount,  180. 

by  sureties  severally,  187. 

of  judgment  by  surety,  188. 

by  surety  when  principal  is  not  liable,  190. 

voluntary  payment  by  surety,  191. 

of  debt  by  surety — statute  of  limitations,   192. 

by  co-surety — rights  of,  194. 

by  co-surety's  note — right  to  contribution,  195. 

by  non-negotiable  paper — right  to  contribution,  195. 

by  solvent  sureties  at  law,  196. 

by  solvent  sureties  in  equity,  197. 

of  debt  by  one  surety — giving  a  less  amount  than  the  face  of  tb« 

note,  198. 
remedy  of  co-surety  before  payment  of  debt,  202. 
by  accommodation  indorser — right  of  contribution,  206. 
in  installments — running  of  the  statute  of  limitations,  211. 
of  judgment  in  installments,  228. 

of  debt  due  the  estate  by  the  administrator,  251,  252. 
by  sureties,  of  bond,  in  full,  327. 
of  money  to  clerk — liability  of  surety,  329. 
failure  of  clerk  to  pay  over,  331. 
money  paid  into  court,  332. 
guarantied,  348. 
guaranty  of,  350. 

default  of — notice  to  guarantor,  352. 
acceptance  of  guaranty — payment  in  default,  355. 
guaranty  of  collection,  359. 
of  guaranty — discharges  guarantor,  361. 
delay  in  enforcing — right  of  guarantor,  363. 
part  payment  by  joint  debtor  of  barred  debt,  371. 
of  debt  by  guarantor,  372. 
by  imprisonment  of  principal,  409. 

27 


418  IXDEX. 

Reference  to  Sections. 
PENALTY, 

eurety  liable  only  for  penalty  of  the  bond,  74. 

can  recover  both  penalty  and  interest,  183. 

on   successive   bonds — right   of   contribution,   209. 

surety's  liability  on  guardian's  bond,  269. 

liability  of  receiver's  surety,  276. 

lability  of  surety  for,  320. 

interest  on — otrieial  bond,  327. 

liability  of  bail,  405. 

extent  of  bail's  liability,  407.  • 

effect  of  pardon,  420. 

PHOTOGRAPH, 

sent  by  sheriff — not  official  acts,  323. 

PLACE, 

changing — liability  of  surety,  10S. 

PLEADINGS, 

action  by  assumpsit  by  surety  against  principal,  178. 

right  of  co-surety  to  bring  assumpsit,  195. 

when   co-surety   must   allege   insolvency   of   principal   in   action   for 

contribution,  197. 
when  co-surety  may  recover  on  the  common  counts,  200. 
amending  pleadings  in  attachment  proceedings,  217. 
bringing  new  parties  defendants  in  attachment,  218. 
change  of  issue,  in  attachment  appeal,  226. 
when  surety  may  set  up  defense,  243. 

I  OLICE  OFFICER, 

liability  of  surety,  335. 

PRE-EXISTING  DEBT, 

as  consideration  in  guaranty,  342. 

PRESUMPTIONS, 

as  to  sureties  on  a  second  bond,  303. 

as  to  term  of  office.  305. 

of  liability  of  indorser. 

»s  to  continr.  •  :ity.  354. 

benefit  to  the  promisor,  396. 


INDEX.  419 

I "  Reference  to  Sections. 

PRINCIPAL, 

who  is,  1. 

nature  of,  in  suretyship  and  guaranty,  4. 

grantee  of  mortgaged  premises,  11. 

when  grantor  and  grantee  are  principals,   11. 

accommodation  indorser  as  principal  or  surety,  14. 

acceptor  of  a  draft  and  the  maker  of  a  note  are  principals,  16. 

in  joint  contract,  22. 

duress  of,   Zl. 

contract  with  surety — consideration,  35. 

wrongful  delivery  of  instrument  by,  51. 

delivery  of  imperfect  instrument,  52. 

name  in  body  of  the  bond  only,  53. 

surety  signing  as — liability,  58. 

denying  valid  appointment  of,  by  surety,  60. 

dealing  with  corporation — denial  by  surety  of  incorporation,  61. 

estopped  to  deny  validity  of  bond,  62. 

attacking   bond   on   collateral    proceedings,    63. 

relation  to  surety  after  judgment,  G4. 

judgment  against — effect  on  surety,  64. 

defaults  of — liability  of  surety,  69. 

employment  changed — liability  of  surety,  72. 

misappropriation    of    funds    by — surety's    liability,    75. 

imposing  additional  duties — liability  of  surety,  79. 

becoming  partner,  79. 

act  of,  not  in  the  line  of  his  duties,  80. 

associating  with  others,  83. 

several  principals,  84. 

in  joint  obligations,  86. 

default  of,  88. 

absence  from  State — statute  of  limitations,  91. 

disability  of — surety's  liability,  92. 

discharge  of — effect  on  surety,  94. 

after  judgment — acts  which  will  discharge  surety,  95. 

legality  of  payment,  96. 

application  of  payments.  97,  98,  99. 

change  of  contract — effect,  100,  101. 

consideration  for  extension  of  time,  114,  115,  116,  117,  118,  119. 

fraud  of,  in  extending  time,  125. 

principal's  dishonesty  known  to  obligee — efTect,  127. 

failure  of  creditor  to  sue,   134. 

fraud  upon — effect,  136. 

payment  of  consideration  in  insta 'Iments  in  advance,  138. 

right  to  set-off  and  recoupment,  144. 

creditor's  promise  to  look  to  the  principal  only,  147. 

creditor  informing  the  surety  that  the  debt  is  paid,  148. 


420  INDEX. 

Reference  to  Sections. 

PRINCIPAL—  ( Continued ) . 

right  of  surety  to  defend  actions  brought  against  principal,  150. 

owed  by  surety — set-off,  159. 

fraudulent  conveyance  by,  160. 

exemptions  of,  1(51. 

when  surety  owes  principal,  162. 

payment  of  judgment   by   surety,   163. 

death  of— effect,   172. 

debt  barred  against  principal — effect,  173. 

payment  by  surety  before  debt  is  due,  175. 

action  of  surety  against  principal,  178. 

liability  to  surety  for  costs  and  interest,  183. 

payment  of  usury  by  surety  for  principal,   185. 

what  amount  surety  can  collect  from  principal,   186. 

right  of  surety  to  take  indemnity  from,  189. 

payment  by  surety  when  principal  is  not  liable,  190. 

voluntary  payment  by  surety,   191. 

statute  of  limitations,  192. 

surety  setting  aside  conveyance  by,  193. 

when  co-surety  may  recover  attorney  fees  and  expense  from,  200i 

judgment  against,  concludes  surety,  237. 

administrator  debtor   to   the  estate,   251. 

administrator  debtor  to  the  estate — common  law  rule,  252. 

discharge  of  an  administrator's  bond — right  of  surety,  257. 

judgment  against — estoppel  of  surety,  265. 

estoppel  by  recitals  in  bond,  266. 

joint  guardians — liability,  267. 

his  own  successor — report,  289. 

continuing  principal  in  office  after  known  defaults,  290. 

sureties  liable  for  official  acts,  311. 

money  lost  by  or  stolen  from,  316. 

as  to  guarantor,  348. 

insolvency  of — guaranty  of  collection,  359. 

delay  by  guarantee  to  prosecute,  360. 

payment  of  debt  by  guarantor,  372. 

rights  of — del  credere  contracts,  394. 

liability  of  bail,  40(5. 

discharge  of — rights  of  bail,  408. 

in  criminal  cases,  413. 

implied  indemnity  to  bail,  415. 

PRINCIPAL  IN  CIVTL  ACTIONS, 

who  is  a  principal,  402. 

right  to  arrest,  404. 

rights  of  bail  to  deliver,  405. 


INDEX.  421 

Reference  to  Sections. 
PRINCIPAL  IN  CIVIL  ACTIONS— (Continued), 
bail  liable  for  principal,  406. 
extent  of  liability  of  bail,  407. 

discharge  of  principal   in  bankruptcy  or  in  insolvency,  408. 
payment  by  imprisonment  of,  409. 
liability  of  different  sets  of  sureties,  410. 
exoneration  of  bail,  411. 
exoneration  by  performance,  412. 

PRINCIPAL  IN  CRIMINAL  ACTIONS, 
custody  of,  413. 
rights  and  liability  of  bail,  41-!. 
implied  contract  to  indemnity  bail,  415. 
express  contract  of  indemnity  to  bail,  416. 
effect  of  surety's  liability,  417. 
costs,  418. 

joint  and  several  liability  of  bail,  419. 
effect  of  pardon,  420. 
delivery  of,  by  bail,  421. 
bail   on  appeal,   422. 
appearance  of  principal,  423. 
re-arresting  principal  on  the  same  charge,  424. 
giving  a  new  bond,  425. 

arresting  principal  on  different  charge,  426. 
sureties  released  by  change  of  their  obligation,  427 
exoneration  cf  bail  by  act  of  God,  428. 
exoneration  of  bail  by  act  of  law,  429. 
exoneration  of  bail  by  act  of  obligee,  430. 
exoneration  of  bail  in  general,  431. 
subrogation  in  criminal  cases,  432. 
effect  of  forfeiture  of  bond,  433. 
setting  aside  forfeiture,  434. 

voluntary  appearance  or  arrest  after  forfeiture,  435. 
effect  of  remission  of  forfeiture,  436. 
taking  money  in  lieu  of  bail,  437. 

PRISONER, 

taking  articles  from — liability  of  officer,  323. 
officer's  liability  for  escape  of,  325. 
delivery  to  incompetent  deputy  sheriff,  326. 

PRIVATE  OFFICERS, 

private  bonds — liability,  282. 
continuing  liability  of  private,  283. 


£22  INDEX. 

Reference  to  Sections. 

PRIVATE  OFFICERS—  ( Continued ) . 

continuing  liability  of  surety,  283. 

restriction  of  surety's  liability,  284. 

as  to  the  scope  of  employment,  285. 

increase  of  the  capital  stock  of  the  corporation,  286. 

discharge  of  surety  by  fraud,  287. 

bond  covering  prior  and   subsequent  defaults,  288. 

his  own  successor,  289. 

continuing  in  the  same  office,  290. 

delinquency  of  obligee,  291. 

failure  to  discharge  delinquent,  292. 

failure  to  notify  surety  of  default,  293. 

covenant  not  to  sue,  294. 

accord  and  satisfaction,  295. 

notice  of  surety's  withdrawal,  296. 

discharge  of  surety  by  acts  of  obligee,  297. 

action  on  the  bond,  298. 

sureties  concluded  by  recitals  in  the  bond,  299. 

liability  for  loss  of  money,  300. 

PRIVATE  OFFICIAL  BONDS, 

duration  of  surety's  liability,  282. 
continuing  liability  of  surety,  283. 
restriction  of  surety's  liability,  2S4. 
as  to  the  scope  of  the  officer's  employment,  285. 
increase  of  the  capital  stock,  286. 
discharge  of  surety  by  fraud,  237. 
bond  covering  prior  and  subsequent  defaults,  288. 
principal  his  own  successor,  289. 
continuing  in  office  after  known  defaults,  290.. 
delinquency  of  obligee,  291. 
failure  to  discharge  delinquents,  292. 
failure  to  notify  surety  of  officer's  default.  293. 
covenant  not  to  sue  one  surety,  294. 
accord  and  satisfaction  of  officer,  295. 
notice  of  surety's  withdrawal,   296. 
discharge  of  surety  by  acts  of  obligee,  297. 
action  on  the  bond,  298. 

sureties  concluded  by  recitals  in  a  bond,  299.. 
liability  for  loss  of  money,  300. 
I 

PROBATE  COURT, 

probate  of  will  in  another  State— effect,  245. 
order  of,  against  guardian— binding  on  surety,  265. 


INDEX.  423 

Reference  to  Sections. 
PROCESS, 

failure  of  officer  to  return,  325. 

PROFITS, 

making  on  public  funds,  318. 

PROMISE, 

surety's  promise  being  the  inducement  for  the  contract — considera- 
tion, 40. 
founded  upon  a  passed  consideration,  40. 

to  pay  by  third  person  for  extension  of  time,  42. 
to  pay  debt  of  another — consideration,  44. 
to  extend  time  of  payment,  46,  47,  48. 
to  revive  a  debt,  89. 
for  a  promise  as  a  consideration,   114. 
by  surety  to  revive  debt,  118. 
of  extension — what  is,  121. 
of  creditor  to  look  to  principal  only,  147. 
to  pay  a  pre-existing  debt  of  another,  191. 
implied  from  principal,  192. 
as  consideration  of  guaranty,  341. 
parol — in  guaranty,  343. 
when  within  statute  of  frauds,  374. 
effect  of  the  statute  of  frauds,  375. 
of  incapacitated  debtor,  376. 
new  consideration,  377. 
consideration  for,  378. 

third  party — taking  debtor's  property,  379. 
third  person  not  being  liable  in  guaranty,  380. 
original  consideration,  381. 
oral,  to  indemnify  another,  382. 
indemnity  contracts  in  general,  383. 
what  is  a  sufficient  consideration  in  guaranty,  384. 
in  novation,  385. 
to  pay  debt  of  another,  386. 
to  debtor  to  pay  his  own  debt,,  387. 
to  whom  credit  is  given,  388. 
executing  and  indorsing  notes  for  another,  389. 
to  promote  interest  of  promisor,  391. 
relinquishment  of  lien,  392. 
to  perform  the  obligation  of  another,  393. 
del  credere  contracts,  394. 
to  whom  promise  must  be  made,  395. 
contract  for  the  benefit  of  the  promisor,  396. 
special  promise,  397. 


424  INDEX. 

Reference  to  SectioM. 
PROMISE—  ( Continued ) . 

sale  of  goods,  398. 

joint  liability,   399. 

oral  contract  of  insurance,  400. 

to  answer  for  torts  of  another,  401. 

PROTEST, 

by  notary — bank's  selection,  336. 

PUBLIC  OFFICERS. 

extent  of  sureties*  liability,   301. 

liability  of  sureties  for  prior  defaults,  302. 

presumption  as  to  sureties  on  second  bond,  303. 

de  facto  officers.  304. 

holding  over,  305. 

death  of,  306. 

money  used  to  cover  previous  delinquencies,  307. 

giving  second  bond  in  same  term,  308. 

giving  bond  without  statutory  authority,  309. 

general  and  special  bonds,  310. 

sureties  only  liable  for  official  acts,  311. 

subsequently  imposed  duties,  312. 

subsequently  imposed  duties  by  the  legislature,  313. 

State  not  responsible  for  its  officers,  314. 

forgery  of  prior  surety's  name.  315. 

money  lost  or  stolen  from,  316. 

depositing  money  in  bank,  317. 

making  profits  on  public  funds,  318. 

interest  recovered  after  breach,  319. 

sureties'  liability  for  penalty.  320. 

estoppel  cf  surety  by  judgment,  321. 

sheriff's  and  constable's  liability.  322. 

scope  of  sheriff's  and  constable's  liability,  323. 

sheriff  or  constable  levying  on  wrong  property,  324. 

liable  for  ministerial  duties,  325. 

duty  to  State  and  to  persons.  326. 

limit  of  surety's  liability.  227. 

liability  of  surety  after  term  expires,  328. 

sureties'  liability.  329. 

compensation  of  clerk  of  court.  330. 

failure  to  pay  over  by  clerk.  331. 

money  paid  into  court — liability  of  clerk,  332. 

delinquencies  of  clerk.  333. 

sureties  on  bond  of  justice  of  the  peace,  334. 

sureti>-  <>n  t  f>nd  of  police  oC 

sureties  of  notary  public.  336. 


INDEX.  4^5 

Reference  to  Section*. 
PUBLIC  OFFICERS—  ( Continued ) . 

tax  collector,  337. 
subrogation  of  surety,  338. 

PUBLIC  OFFICIAL  BONDS, 

extent  of  surety's  liability,  301. 

liability  for  previous  defaults,  302. 

presumption  as  to  sureties  on  second  bond,  303. 

de  facto  official  bonds,  304. 

officers  holding  over,  305. 

death  of  officer,  306. 

money  used  to  cover  previous  delinquencies,  307. 

giving  second  bond  in  same  term,  308. 

giving  bond  without  statutory  authority,  309. 

general  and  special  bonds,  310. 

surety  liable  for  official  acts,  311. 

subsequently  imposed  duties,  312. 

imposed  duties  by  the  legislature,  313. 

State  not  responsible  for  its  officers,  314. 

forgery  of  prior  surety's  name,  315. 

money  lost  or  stolen  from  principal,  316. 

depositing  money  in  bank,  317. 

making  profits  on  public  funds,  318. 

interest  recovered  after  breach,  319. 

liability  of  surety  for  penalty,  320. 

estoppel  by  judgment,  321. 

of  sheriff  and  constable,  322. 

sheriff  and  constable — liability  of  sureties,  323. 

sheriff  and  constable  levying  on  exempt  property,  324. 

liability  for  ministerial  duties,  325. 

duty  of  officer  to  State  and  to  persons,  326. 

limit  of  surety'3  liability,  327. 

liability  of  surety  after  term  expires,  328. 

liability  of  sureties  on  bond  of  clerks,  329. 

compensation  of  clerk,  330. 

failure  of  clerk  to  pay  over,  331. 

money  paid  into  court,  332. 

delinquencies  of  clerks,  333. 

sureties  on  bond  of  justice,  334. 

sureties  on  bond  of  police  officer,  335. 

sureties  on  bond  of  notary  public,  336. 

of  tax  collector,  337. 

subrogation  of  surety,  338. 

RAILROAD  COMPANY, 

loss  of  money  by  agent — liability,  300, 


4:26  INDKX. 

Reference  to  Sections. 

EATIFICATION, 

by  surety  of  unauthorized  act,   114. 

HEAL  ESTATE, 

income  from — administrator's  liability,  244. 
equitable  conversion,   244. 
sale  of,  beyond  jurisdiction  of  State,  245. 
guardian  selling — new  bond,  2C1. 

RE-ARREST, 

of  principal  on  same  charge — liability  of  bail,  424. 

RECEIVER, 

liability  of  his  sureties,  271. 

right  of  action  against  his  sureties,  272. 

when  surety  is  concluded  by  judgment  against  receiver,  273. 

liabilities  of  sureties  for  funds,  274. 

liabilities  of  sureties  on  new  bond,  275. 

extent  of  sureties'  liability  on  receiver's  bond,  27o\ 

RECITALS, 

in  instrument — denial  of,  by  surety,  59. 

estoppel  of  surety  by — in  bond,  266. 

restricting  surety's  liability,  284. 

surety  concluded  by,  in  officer's  bond,  299. 

estoppel  of  de  facto  officer  by  recitals  in  his  bond,  304. 

to  show  continuing  guaranty,  354. 

RECOGNIZANCE, 

subrogation  of  surety  in  place  of  State,  338. 
discharge  of  principal,  408. 
custody  of  principal,  413. 
rights  of  bail,  414. 

RECOUPMENT, 

as  to  surety  and  principal,  144. 

RELATION, 

payment  of  debt  by  surety — antecedent  rights,  160. 

when  surety  owes  principal,  162,  174. 

implied  contract  of  indemnity  dates  back  to  it9  execution,  301. 


INDEX.  4^*' 

Reference  to  Sections. 

RELEASE, 

of  surety  for  fraud  of  obligee,  51. 

of  principal  debtor— reserving  remedy  against  sure  7,  115. 

of  surety  by  extension  of  time,  119. 

of  one  of  joint  debtors,  120. 

of  one  joint  debtor— judgment,  124. 

of  co-surety,  133. 

of  part  of  collaterals,  137. 

wrongful  release  of  mortgage— rights  of  surety,  154. 

payment  of  judgment  by  surety,  163. 

of  surety — payment  afterwards,  177. 

of  co-surety  who  becomes  bankrupt,  212. 

of  mortgaged  security  by  mistake,   364. 

of  co-guarantor,  369. 

when  original  debtor  is  released,  397. 

REMEDIES, 

reservation  of,  by  creditor  against  surety,  116. 

contract  of  suretyship— rights  of  parties,   140. 

diligence  of  surety,  141. 

facts  concealed,  142. 

facts  developed  subsequent  to  the  contract,  14^. 

set-off  and  recoupment,  144. 

compelling  creditor  to  bring  suit,  145. 

effect  of  notice  by  surety  to  creditor  to  bring  suit,  146. 

creditor's  promise  to  look  to  the  principal  alone,  147. 

creditor  informing  the  surety  that  the  debt  is  paid,  148. 

surety  may  compel  creditor  to  resort  to  securities,  149. 

right  of  surety  to  defend  action,  150. 

subrogation  of  creditor  to  sureties'  securities,  151. 

subrogation  of  surety  to  creditor's  rights,  152. 

what  securities  the  surety  is  entitled  to,  153. 

when  surety  can  take  securities,  154. 

stranger  paying  debt,  155. 

when  surety  will  not  be  subrogated,  156. 

surety  must  first  pay  the  debt,  157. 

what  is  payment,  158. 

debtor  nnd  creditor,  159. 

fraudulent  conveyances  of  principal,  160. 

as  to  exemptions  of  principal,  161. 

when  surety  owes  principal,  162. 

payment  of  a  specialty,  163. 

extent  of  subrogation,  164. 

surety  of  a  surety,   165. 

co-sureties,  166. 


428  IITDEX. 

Reference  to  Sections. 
REMEDIES —  ( Continued ) . 

marshalling  debts,  151. 

right  of  surety  against  principal,  158. 

when  surety  owes  principal,   162. 

payment  of  judgment  by  surety,  163. 

of  co-sureties — payment  of  debt,  166. 

of  creditors,  171. 

death  of  principal — rights  of  creditor,  172. 

of  accommodation  indorser,  183. 

of  surety  in  equity,  193. 

surety  paying  by  his  own  note — compelling  contribution,  195. 

enforcing  contribution  at  law,  196. 

enforcing  contribution  in  equity,  3  97. 

of  co-surety  before  payment  of  debt,  202. 

co-sureties',  different  liability-— right  of  contribution,  205. 

#f  injured  defendant  in  attachment,  222. 

against    receiver,    271. 

against  tax  collector,  337. 

by  assignee  of  guaranty,  357. 

by  assignee  of  sealed  contract,  ', 

in  criminal  cases — subrogation,  432. 

RENEWAL, 

of  note,   10. 

of  debt,  S3. 

of  note? — effect  on  surety,  122. 

of  note  by  forged  note — effect  on  surety,  125. 

RENTS  AND  PROFITS, 

payment  in  installments — liability  of  surety,  81. 

tenant  holding  over,  82. 

reduction  of — effect,  101. 

reduced  with   surety's  consent.   111. 

in  attachment — liability  of  surety,  224. 

of  real  estate — liability  of  administrator's  or  executor's  surety  244. 

conversion  of  land  by  administrator,  246.  / 

non-payment  by  officer  with  proceeds  of  sale,  325. 

guarantied  lease — not  revocable,  345 

REPLEVIN. 

bond  in — liability  of  sureties,  238. 

discontinuance  of  action,  239. 

substitution  of  new  parti°s,  240. 

yaryin^  the  bond  in,  241. 

failure  of  officer  to  take  sufficient  bond,  325. 


INDEX.  429 

Reference  to  Sections. 

RES  ADJUDICATA, 

judgment  against  principal,  223. 

RESERVATION, 

of  creditor's  right  against  surety — extension  of  time,  116. 

REVERSAL, 

of  judgment  in  attachment — rights  of  surety,  224. 

REVIVAL  OF  CONTRACT, 

by  surety,  34. 

of  surety's  liability,   89. 

of  debt  by  surety,  118. 

by  surety,  270. 

of  joint  debt,  371. 

REVOCATION, 

of  suretyship,  S7. 

of  guaranty,  346. 

of  guaranty  by  dissolution  of  partnership,  361. 

of  continuing  guaranty,   3G7. 

of  guaranty— death  of  guarantor,  368. 

SALE, 

of  mortgaged  premises  by  mortgagor — rights  of  mortgagee,   Ii 

of  real  estate — extra-territorial,  245. 

of  real  estate  by  guardian,  261. 

failure  to  sell,  by  sheriff,  325. 

of  goods — liability  of  third  party,  398. 

SCOPE  OF  CONTRACT, 

a  surety  canMot  be  held  beyond  the  scope  of  his  contract,  66. 

construction  of  contract — at  law,  67. 

construction  of  contract — in  equity,  68. 

liability  of  surety  for  past  defaults  of  principal,  69. 

surety's  liability  limited  to  a  fixed  time,  70. 

time  limited  to  a  subsequent  period,  71. 

employment  or  condition  of  principal  changed,  72. 

sureties  in  legal  proceedings — order  of  liability.  73. 

surety  only  liable  for  penalty  of  the  bond  with  accessories,  74. 

misappropriation  of  funds  by  principal,  75. 

increase  of  funds  in  the  hands  of  the  principal,  76. 

surety  may  limit  his  liability,  77. 


430  INDEX. 

Reference  to  Sections. 
SCOPE  OF  CONTRACT— (Continued). 

forged  signatures,  78. 

additional  employment  imposed  on  the  principal,  79. 

act  of  principal  not  in  the  line  of  his  business,  80. 

becoming  surety  for  the  payment  of  rent,  81. 

tenant  holding  over,  82. 

principal  associating  with  others,  83. 

several  principals — partnership,  84.      / 

death  of  surety — effect,  85. 

construing  joint  obligation  as  several,  86. 

revoking  suretyship,  87. 

default  of  principal,  88. 

revival  of  surety's  liability,  89. 

part  payment  by  one  of  several  and  joint  debtors,  90*  > 

absence  of  principal  from  the  State^  91. 

disability  of  principal,  92. 

conflict  of  laws,  93. 

surety  only  bond  under,  285. 

i 

SEALS, 

more  signatures  than  seals — effect,  53. 

blanks  in  sealed  instruments — parol  authority  to  fill  up,  56. 

two  or  more  obligors  may  adopt  one  seal,  208. 

import  consideration — in  guaranty,  341. 

guaranty  under  seal — negotiability  of,  358. 

revocation  of  seal  guaranty,  367. 

SECURING  THE  DEBT  OF  ANOTHER, 

pledging  property  for  another's  debt,  18. 

SET-OFF, 

rights  of  surety  and  principal,  144. 
when  surety  owes  principal,  159. 
rights  of  surety  to  set-off,  164. 

SHERIFFS  AND  CONSTABLES, 

giving  an  additional  bond,  308. 
defaults  of — liability  of  surety,  322. 
scope  of  surety's  liability,  323. 
levyincr  on  wronpr  property,  324. 
liable  r'>r  ministerial  •' u ties,  325. 
duty  to  State  an<!   to  persons,  328. 
limit  of  surety's  liability,  327. 
liability  of  surety  after  term  expires,  328. 


INDEX.  431 

Reference  to  Sections. 
SIGNATURE, 

more  signatures  than  seals — effect,  53. 
effect  of  forged  signatures,  78. 
addition  to  notes,  110. 
of  note — one  forged,  366. 
guaranty  of,  forged,  371. 

SIGNING, 

by  sureties,  names  not  appearing  in  bond,  53. 
principal  not  signing — name  in  body  of  the  bond,  54, 
of  surety  upon  condition — notice  to  obligee,  51. 
surety  signing  as  principal — eifect,  58. 
forged  instrument  by  surety,  78. 
surety  signing  on  condition,  129. 
by  surety — implied  contract,  301. 
indorsing  note  in  blank,  347. 
upon  condition,  350. 

STATE, 

contract  of,  relation  to  officer,   313. 
not  responsible  for  its  officers,  314. 
subrogation  of  surety,  on  official  bond,  338, 
subrogation  of  bail,  432. 

STATUTE, 

may  fix  the  term  of  the  surety,  70. 

death  of  principal — effect  of  statute  as  to  filing  claim,  172. 

death  of  principal — statute  concerning  contribution,  192. 

prescribes  the  duties  of  administrator  and  guardian,  261. 

as  to  election  of  officer,  283. 

violation  of,  in  taking  interest  on  deposits  by  officer,  318. 

liability  of  principal  under,   320. 

imperative — effect  on  officer,  325. 

STATUTE  OF  FRAUDS, 

application  of,  373. 

when  a  promise  is  within,  374. 

effect  of,  375. 

incapacity   of  principal  debtor,   376. 

new  consideration,  377. 

consideration  for  promise,  378. 

third  party  taking  debtor's  property,  379. 

when  third  person  is  not  liable,  380. 

original  consideration,  381. 


432  INDEX. 

Reference  to  Sections. 
STATUTE  OF  FRAUDS— (Continued). 

oral  promise  to  indemnify  another,  382. 

indemnity  contracts  in  general,  383. 

consideration  for  promise  to  pay  debt  of  another,  384. 

novation,  385. 

pipmise  to  pay  debt  of  another,  38G. 

promise  to  debtor  to  pay  his  debt,  387. 

to  whom  credit  is  given,  388. 

indorsing  and  executing  notes  for  another,  389. 

assignment  of  promissory  notes,  390. 

agreeing  to  pay  debt  of  another,  391. 

relinquishment  of  a  lien,  392. 

promise  to  perform  the  obligation  of  another,  393. 

del  credere  contracts,  394. 

to  whom  promise  must  be  made,  395. 

contracts  for  the  benefit  of  the  promisor,  396. 

special  promise,  397. 

sale  of  goods,  398. 

joint  liability,  399. 

oral  contract  of  insurance,  400. 

to  answer  for  the  torts  of  another,  401. 

indemnity  to  bail  by  third  party,  416. 

STATUTE  OF  LIMITATIONS, 

revival  of  contract,  89. 

part  payment  by  one  of  several  and  joint  debtors,  90 

payment  of  barred  debt  by  joint  debtor,  167. 

debt  barred  against  principal — rights  of  surety,  173 

running  of,  between  surety  and  principal,  192. 

running  of,  between  co-sureties,  211. 

time  to  bring  suit  against  surety,  263. 

revival  of  debt  by  surety,  270. 

running  in  favor  of  guarantor,  371. 

when  action  is  barred  as  to  bail,  431. 


STRANGER, 

paying  debt — rights  of  subrogation,  155. 
paying  debt — right  of  surety,  174. 


STRICTISSIMI  JURIS, 

what  it  means,  112. 


INDEX.  433 

Reference  to  Sections. 
SUBROGATION, 

surety  entitled  to,  when,  130. 

of  surety  to  creditor,  157. 

of  creditor  to  surety's  securities,  151. 

of  surety  to  creditor's  rights,  152. 

when  surety  may  be  subrogated,  153. 

stranger  paying  debt,  155. 

when  surety  will  not  be  subrogated,  156. 

extent  of,  as  to  surety,  164. 

rights  of  surety  of  a  surety,   165. 

rights  of  co-sureties,  166. 

rights  of  joint  debtors,  167. 

of  prior  surety — appeal  bond,  168. 

of  guarantor,  169. 

of  surety  for  paying  barred  debt  against  principal,  173. 

as  to  surety's  estate,  201. 

of  surety  on  official  bond,  338. 

of  bail  in  civil  cases,  406. 

rights  of  bail  in  criminal  action,  415. 

in  criminal  cases,  432. 

SUBSTITUTION, 

of  sureties,  8. 

forged  note  for  prior  one— effect  on  surety,  125. 

of  securities — effect,  137. 

of  new  note — right  to  contribute,  204. 

of  new  bond  in  replevin,  239. 

in  case  of  novation,  385. 

SUNDAY  CONTRACTS, 

contract  of  surety  made  on  Sunday,  49. 
guaranty  of — effect,  351. 

SURRENDER, 

of  old  note  for  new — consideration,  37. 

of  securities  by  surety  at  the  instance  of  the  principal— effect,  51. 

old  note  for  new  which  is  forged — effect  on  surety,  125. 

of  security  by  creditor — effect,  130. 

of  security — discharge  of  guarantor,  362. 

of  principal  by  bail,  421. 

of  principal,  by  bail  after  judgment,  422. 

SURROGATE, 

liability  for  loss  of  money,  300. 

28 


434  index. 

Reference  to  Sections. 


SURETY, 


who  is,  1,  2. 

how  bound,  2. 

distinguished  from  guarantor,  4. 

contract  of,  4. 

nature  of  his  liability,  6. 

substitution  of,  8. 

two  sets  of — when  jointly  liable,  9. 

agreement  as  to  liability  among  sureties,  10. 

grantee  of  mortgaged  premises,  11. 

accommodation  indorser  as  surety,  14. 

indorser's  relation,   16. 

wife  mortgaging  her  property  to  secure  husband's  debts,  19. 

assumption  of  partnership  debts  after  dissolution  by  one  partner,  20. 

joint  and  several  makers  of  notes — liability,  22. 

infants  as  sureties,  24. 

corporation  as  surety,  28,  30,  31. 

duress  of,  32. 

non-residents,  33. 

6uretv  and  guaranty  companies  as  sureties,  34. 

revival  of  contract  by,  35. 

indorsing  note  before  and  after  execution,  36. 

when  bound  by  contract,  39. 

promise  of — consideration,  40. 

subsequent  undertaking,  41. 

obligation  to  obligee  only,  49. 

liability  for  wrongful  delivery  of  instrument,  51. 

signing  bond  upon  condition,  51. 

liability  for  delivery  of  imperfect  instrument,  52. 

name  not  appearing  in  the  body  of  the  bond,  53. 

liability  of — filling  blanks,  57. 

signing  as  principal — liability,  58. 

denial  of  recitals  in  the  bond,  59. 

denying  valid  appointment  of  princi] 

cannot  deny  incorporation  of  corporation-,  when,  61. 

cannot  deny  court's  jurisdiction,  02. 

attacking  bonds  on  collateral  proceedings,  63. 

relation  to  principal  after  judgment.  64. 

•fleet  of  judgment  against  principal.  65. 

extent  of  contract,  60. 

term  of  office,  70.  71. 

change  of  principal's  emplojTnent,  72. 

two  sets — order  of  liability,  73. 

liable  only  for  penalty,  74. 

liable  for  legal  interest,  74. 


INDEX.  435 

Reference  to  Sections. 
SURETY—  ( Continued ) . 

measure  of  liability,  75. 

liability  of — for  misappropriation  of  funds  by  principal,  75, 

increase  of  funds,  76. 

limiting  his  liability,  77. 

when  released  by  forgery,  78. 

imposing  additional  duties  on  principal,  79. 

liability  for  acts  not  in  the  line  of  principal's  duty,  80. 

liability  for  rent,  81. 

tenant  holding  over,  82. 

principal  associating  with  others — liability,  83,  84. 

death  of— effect,  85. 

in  joint  obligations,  86. 

revocation  of  suretyship,  87. 

default  of  principal,  88. 

revival  of  liability,  89. 

running  of  the  statute  of  limitations,  90. 

liability  of — principal  out  of  the  State,  91. 

liability  of — disability  of  principal,  92. 

discharge  of  principal — effect,  94. 

discharge  of,  after  judgment,  95. 

legality  of  payment,  96. 

application  of  payments,  97,  93,  99. 

change  of  principal's  contract,  100,  101. 

alteration  of  instrument,  104. 

alteration  of  date,  105. 

alteration  of  amount  of  note,  106. 

changing  rate  of  interest,  107. 

changing  place  of  payment,  108. 

destroying  identity  ot  contract,  109. 

addition  of  another  surety,  110.         ""' 

changing  contract  of  a  lease,  111. 

liability  on  building  contracts,  112. 

extension  of  time — effect,  113. 

discharge  of,  by  extension  of  time,  114.  >. 

extension  of  time  by  paying  usury,  115. 

reservation  of  remedy  against,  116. 

extension  of  time  without  consent  of  surety,  117. 

waiving  discharge,  118. 

giving  time  to  one  of  two  or  more  sureties — effect,  120. 

what  ic  an  extension  of  time  of  payment,  121. 

discharged  by  creditor  accepting  now  note,  122. 

Calling  collateral  security  by  creditor — effect,   123. 

reneval  of  note  by  forged  note — effect,  125. 

being  induced  by  fraud  to  sign,  126. 


436  INDEX. 

Reference  to  Sections. 

^SURETY—  ( Continued ) . 

notice  of  creditor  of  principal's  dishonesty — effect,  127. 
negligence  of  creditor  in  not  availing  himself  of  debtor's  means- 
effect,  128. 
signing  upon  condition,  129. 
surrender  of  security — effect,  130. 
creditor  releasing  property,  131. 
failure  of  creditor  to  apply  securities — effect,  132. 
release  of  co-surety,  133. 
failure  of  creditor  to  sue  principal,  134. 
disaffirmance  of  contract  by  principal,  135. 
fraud  upon  the  principal,  136. 
substitution  of  sureties,  137. 
payment  of  consideration  in  installments,  138. 
tender  of  payment,  139. 
rights  of — in  general,  140. 

i'ORBTY  AND  CREDITOR— EIGHTS  OF, 

diligence  of,  141. 

facts  concealed,  142. 

facts  developed  subsequent  to  the  contract,  143. 

Bet-off  and  recoupment,  144. 

compelling  creditor  to  bring  suit,  145. 

effect  of  notice  by  surety  to  creditor  to  collect  debt,  140. 

creditor's  promise  to  look  to  the  principal  only,  147. 

creditor  informing  the  surety  that  the  debt  is  paid,  148. 

at  law  the  surety  must  pay  the  debt,  149. 

right  of,  to  defend  action,  150. 

subrogation  of  creditor  to  surety's  securities,  151. 

subrogation  of,  to  creditor's  rights,  152. 

what  securities  he  can  claim,  153. 

when  surety  can  take  securities,  154. 

subrogation  of,  155,  156. 

must  first  pay  the  debt,  157. 

after  payment — rights  of  surety  against  principal,  158. 

relation  as  debtor  and  creditor,  159. 

fraudulent  conveyance  by  principal,  160. 

as  to  exemptions  of  principal,  161. 

when  surety  owes  principal,  162. 

payment  of  judgment,   103. 

extent  of  subrogation,  164. 

of  a  surety,  165. 

co-sureties,   166. 

succeeding  sureties,  168. 

defense  in  courts  of  law  or  of  equity,  170. 


index.  437 

Reference  lo  Sections. 
SURETY  AND  CREDITOR— RIGHTS  OF— (Continued). 

judgment  against  surety  alone,  171. 
death  of  principal — eliect,  172. 
debt  barred  against  principal — effect,  173. 
liability  of  principal  to  surety,  174. 
paying  debt  beloie  due,  175. 

flURETY  AND  PRINCIPAL— RIGHTS  OF, 

part  payment  by  surety,  176. 

must  be  under  legal  obligations  to  pay,  177. 

how  to  proceed  against  principal,  17  b. 

to  one  partner,  179. 

giving  nis  own  note  in  payment,  180. 

payment  out  of  surety's  property,  181. 

when  right  of  action  is  complete,  182. 

liability  of  principal  for  surety's  costs,  183. 

when  consequential  damages  may  be  recovered,  184. 

payment  of  usury,  185. 

what  amount  can  be  collected  from  principal,  186. 

joint  suit  by  sureties,  187. 

payment  of  individual  judgment,  188. 

right  to  take  indemnity  from  principal,  189. 

payment  by,  when  the  principal  is  not  liable,  190. 

voluntary  payment  by,  191. 

running  of  the  statute  of  limitations  as  to  the  principal,  192. 

relief  of,  in  equity,  193. 

right  to  contribution,  194. 

payment  by  his  own  note,  195. 

right  to  enforce  contribution  at  law,  196. 

enforcement  of  contribution  in  equity,  197. 

cannot  speculate  to  the  injury  of  his  co-surety,  198. 

contribution  of  surety  of  a  surety,  199. 

liability  to  contribute  is  several,  200. 

liability  of  surety's  estate,  201. 

remedy  against  co-surety  before  payment,  202. 

under  different  instruments — contribution,  203. 

substitution  of  new  note,  204. 

may  limit  liability,  205. 

rights  of  accommodation  indorser,  206. 

in  legal  proceedings — right  to  contribution,  207. 

indemnity  to  one  surety,  208. 

liability  to  contribute  on  successive  bonds,  209. 

parol  evidence  to  identify,  210. 

running  of  statute  of  limitations  between  co-sureties,  211.  v 

bankruptcy   of — right   of    contribution,    212. 


43  S  LNDEX. 

Reference  to  Sections. 
SURETY  IN  LEGAL  PROCEEDINGS, 

discharge  of,  on  attachment  bonds,  213. 

exoneration  of,  214. 

attachment — judgment  of  non- suit— effect,  215 

release  of  attachment  lien — effect,  216. 

liability  on  attachment  bonds,  217. 

bringing  new  parties  in  attachment — effect  on  surety,  218. 

trespass  by  officer — release  of,  219. 

delivery  bond — right  of  surety  to  property,  220. 

void  bond — rights  of,  221. 

attachment — damages,  222. 

conclusion  of,  223. 

appeal  bond — discharge  of  surety,  224. 

appeal  to  special  court,  225. 

change  of  issue  and  parties,  226. 

increase  of  claim  on  appeal,  227. 

agreement  of  litigants,  22S. 

successive   appeal    bonds,    229. 

when  breach  is  made,  230. 

liability  on  indemnity  bonds,  231. 

injunction  bonds,  232. 

when  suit  may  be  brought,  233. 

liability,  joint  and  several,  234. 

what  law  governs  suretys  liability,  235. 

dissolution  of  injunction,  236. 

concluded  by  judgment  against  principal,  237. 

liability  on  replevin  bond,  238. 

discontinuance  of  replevin  suit.  239. 

substitution  of  new  parties  in  replevin  suit,  240. 

varying  the  terms  of  a  replevin  bond,  241. 

SURETY.   JUDICIALLY   APPROVED, 

of  executor  and  administrator,  242. 

when  concluded  by  judgment,  243. 

liability  for  income  on  real  estate,  244. 

liability  for  extra-territorial  acts  of  principal,  245. 

liable  only  for  official   acts,   246. 

new  and  additional  bond,  247. 

liability  after  discharged.  248. 

on  joint  bond,  249. 

allowances  by  administrator  to  intestate's  wiiow,  250. 

administrator  or  executor  bein^r  debtor  to  the  e^ttte,  251. 

common  law  rule  when  administrator  or  executor  is  debtor  to  the 

estate,  2.r,2. 
general  liability — on  administrate;  's  bond.  253. 


INDEX.  430 

Reference  to  Sections. 
SURETY,  JUDICIALLY  APPROVED— (Continued). 

administrator  and  executor  on  different  estates,  254. 

executor  acting  in  fiduciary  capacity,  255. 

failure  of  administrator  to  report  inventory,  250. 

release  of,  on  administrator's  bond,  207. 

when  right  of  action  arises  against  an  administrator's  surety,  258. 

of  guardians — general  liability,  259. 

additional  security  given  by  guardian's,  2*>0. 

guardian  selling  real  estate,  261. 

discharge  of — guardian's  bond,  262. 

termination  of  liability — guardian's  bond,  263. 

when  action  arises  against  surety  on  guardian's  bond, 

estoppel  of,  by  judgment  against  guardian,  265. 

estoppel  by  recitals  in  bond,  266. 

of  sureties  on  bond  of  joint  guardians,  267. 

on  joint  bond,  268. 

extent  of  liability  on  guardian's  bond,  269. 

revival  of  debt  by,  270. 

liability  of,  on  receiver's  bond,  271. 

rifht  of  action  against,  on  receiver's  bond,  272. 

when  concluded  by  judgment  against  receiver,  273. 

liability  for  funds  in  the  bands  of  tbe  receiver,  274. 

liability  on  new  bond  of  receiver,  275. 

extent  of  liability  on  receiver's  bond,  276. 

liability  on  assignee's  bond,  277. 

estoppel  of — on  assignee's  bond,  278. 

giving  new  bond  by  assignee,  279. 

default  of  assignee,  280. 

discbarge  of — assignee's  bond,  281. 

SURETY  OF  PRIVATE  OFFICER, 

liability  on  private  official  bond,  282. 

continuing  liability  on  private  official  bond,  283. 

restricting  liability  by  recitals,  284. 

as  to  the  scope  of  tbe  officer's  employment,  285. 

increase  of  the  capital  stock  of  the  corporation,  286. 

discharge  of,   by   fraud,   287. 

bond  covering  prior  defaidts,  288. 

principal  his  own  successor,  289. 

continuing  principal,  290. 

delinquency  of  obligee,  291. 

failure  to  discharge  delinquents,  292. 

failure  to  notify  surety  of  default,  293. 

covenant  not  to  sue  one  of  the  sureties,  294. 

accord  and  satisfaction  of  officer,  295. 


440  INDEX. 

Reference  to  Sections. 
SURETY  OF  PRIVATE  OFFICER— ( Continued ) . 

notice  of  surety's  withdrawal,  296. 

discharged  by  acts  of  the  obligee,  297. 

action  on  the  officer's  bond,  298. 

concluded  by  recitals  in  the  bond  of  an  officer,  299. 

liability  for  loss  of  money  by  officer,  300. 

SURETY  OF  PUBLIC  OFFICER, 

liability  of  public  official  bonds,  301. 

liability  on  prior  defaults,  302. 

presumption  as  to  sureties  on  second  official  bond,  303. 

bonds  of  de  facto  officers,  304. 

officers  holding  over,  305. 

death  of  public  officer,  306. 

money  used  by  officer  to  pay  previous  delinquencies,  307. 

giving  second  bond  in  same  term,  308. 

giving  bond  without  statutory  authority,  309. 

general  and  special  bonds,  310. 

liability  only  for  official  acts,  311. 

subsequently  imposed  duties,  312. 

subsequently  imposed  duties  by  the  legislature,  313. 

State  not  responsible  for  its  officers,  314. 

forgery  of  prior  surety's  name,  315. 

money  lost  by  principal,  316. 

depositing  public  money  in  bank,  317. 

making  profits  on  public  funds,  318. 

interest  recovered  after  breach,  319. 

liability  of  surety  for  penalty,  320. 

estoppel  by  judgment,  321. 

on  sheriffs  and  constabVs  bond,  322. 

scope  of  liability  on  sheriff's  and  constable's  bond,  323. 

sheriff  levying  on  wrong  property,  324. 

liable  for  ministerial  duties,  325. 

officer's  duty  to  State,  326. 

limit  of  liability,  327. 

liability  after  term  expires,  328. 

liability  on  bond  of  clerk,  329. 

liability  for  clerk's  accounting,  330. 

failure  of  clerk  to  pay  over,  331. 

money  paid  into  court,  332. 

delinquencies  of  clerk,  333. 

of  justice  of  the  peace,  334. 

of  police  officer,  335. 

of  notary  public,  336. 

of  tax  collector,  337. 


INDEX.  441 

Reference  to  Section*. 
SURETY  OF  PUBLIC  OFFICER— (Continued). 

subrogation  on  official  bond,  338. 
when  bound  for  costs,  384. 
promise  to  indemnify,  395. 
different  sets  of — liability,  410. 

SURETY  AND  GUARANTY  COMPANIES, 
may  act  as  sureties,  34. 

SURETY  OF  A  SURETY, 

rights  of  subrogation,  165. 
contribution  by,  199. 


SURETYSHIP, 


distinguished  from  guaranty,  4. 

how  created,  5. 

questions  of  consideration,  39. 

surety's  promise  being  a  consideration,  40. 

moral  obligation  will  not  support,  40. 

subsequently  contracted,  40,  41. 

alteration  of  contracts  of,  55. 

may  act  retrospectively,  69. 

death  of  surety — effect,  85. 

revocation,   87. 

conflict  of  laws,  93. 

on  condition,  129. 

in  general,  140. 

between  surety  and  principal,  177. 


TAXES, 


misappropriation  of,  by  collector,  307. 
extending  of  time  to  pay  by  legislature,  313. 
tax  collector — liability  of  sureties,  337. 

TENDER, 

of  payment,  139. 

of  payment  by  surety,  158. 

of  payment  of  attachment  judcrment — effect  on  surety,  224. 

what  is  legal — estoppel  to  raise,  332. 

TERM  OF  OFFICE, 

how  fixed,  70. 

time  limited  to  a  subsequent  period,  71. 


442  INDEX. 

Reference  to  Sections. 

TERM  OF  OFFICE — (Continued). 

death  of  surety — effect,  85. 
duration  of  surety's  liability,  282. 
continuing  liability  of  surety,  283. 
successive  terms — liability  of  surety,  302.  ! 
holding  over,  305. 
added  to  by  the  legislature,  305. 
expiration  of — liability  of  surety,  328.    > 
money  paid  to  clerk,  331. 

TIME, 

of  tiStm  of  office,  70,  71. 

extension  of— payment,  114,  115,  116,  117,  118,  119. 

for  extension  must  be  certain,  119. 

limited  on  private  official  bonds,  282. 

official  time  of  surety,  284. 

surety  cannot  be  bound  for  a  longer  time  than  specified,  285. 

expiration  of  term — surety's  liability,  328. 

notice  of  default — what  is  a  reasonable  time,  353. 

TORTS, 

attachment  of  goods — tort  of  officer,  222. 
of  officer  in  levying  execution,  231. 
by  police  officer,  335. 

TREASURER, 

liability  of  surety  on  bond,  297. 

of  county — special  and  general  bonds,  310. 

of  county — liability  for  negligence,  314. 

TRESPASS, 

by  officer  in  attachment — effect  on  surety,  210. 
levying  on  exempt  property,  231. 
of  justice  of  the  peace,  334. 


TRUSTS 


indemnity  of  surety — trust  for  creditor,  151. 

co-surety  taking  property  in  trust — right  of  contribution,  208. 

execution  of — will,  246. 

administrator  debtor  to  the  estate,  251. 

of  administrators,  261. 


INDEX.  4-ili 

Reference  to  Sections. 
ULTRA  VIRES  CONTRACTS, 

of  corporations,  30. 

as  to  consideration,  35. 

contract  of  guaranty — incapacity  of  debtor,  380. 


USURY, 


as  consideration  for  extension  of  time  of  payment,  115. 
paid  by  surety,  185. 

VENUE, 

change  of,  on  appeal — effect  on  surety's  liability, '225. 
change  of — liability  of  bail,  423.  •# 

VOLUNTARY  BONDS, 

given  by  public  ofdcer — effect,  309. 

WAIVER, 

of  discharge  by  surety,  118. 

of  fraud  by  creditor,  125. 

officer  may  waive  delivery  of  property — attachment,  2 J  4. 

WASTE, 

by  administrator — surety's  liability,  244 

WEAPONS, 

taking  deadly  weapons  from  prisoner — liability  of  officer,  422. 

WIDOW, 

allowances  to,  by  administrator,  250 

WILLS, 

probate  of,  in  another  State,  245. 


[Total  Numbeb  of  Pages— 459.] 


AA    000  858  119    1 


